South African Monitor Assessing and Promoting Civil and Minority Rights in

Report IX End 2018 & Beginning 2019

The ANC’s “toxic legacy”, factional struggles and a renewed hybrid regime

South African Monitor Assessing and Promoting Civil and Minority Rights in South Africa

RReport IX – End 2018 & Beginning 2019 The ANC’s “toxic legacy”, factional struggles and a renewed hybrid regime

Report researched and compiled by

Dr Heinrich Matthee

Commissioned by South African Monitor

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South African Monitor aims to assess and promote civil rights in general and minority rights in particular in South Africa. It provides reliable information on relevant events, analyses significant developments and signals new emerging trends.

Focus areas include:

• Key dynamics of the executive; • Democracy and the legislature; • Order, the judiciary and the rule of law; • Group relations and group rights; • Freedom of expression, privacy and the media; • Socio-economic rights and obligations; • The political risks to business.

Reports, of which this is the ninth edition, portray the current state of civil and minority rights in South Africa. All reports can be downloaded free of charge from the website, www.sa-monitor.com.

The website also provides you with an opportunity to subscribe to future updates, as well as download auxiliary documents and articles relevant to the above-mentioned focus areas.

South African Monitor www.sa-monitor.com [email protected]

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Table of Contents

List of abbreviations...... 8 Executive summary...... 11 — Key dimensions of the current order...... 13 — Hybrid regime...... 15 — Some consequences...... 16

Part I: “Toxic legacy taints ANC”...... 19 — A major change in foreign media reporting on the ANC...... 19 — “Time to ditch Mandela’s party”: The Zuma era...... 21 — Ideas have consequences...... 22 — New paradigms needed to understand the ANC’s hybrid regime...... 22

Part II: Violent crime, partisan protection and food insecurity...... 24 — Weak fulfilment of the government’s security function...... 25 — Fearful citizens in a putative democracy...... 26 — The impact of major crime on business...... 27 — Nativism and violent expropriation...... 27 — Farm murders: Violent crime and rural terrorism...... 29 — Strangling rural stability and economies...... 30 — Weakening rural economies...... 31 — Farm murders lead to a serious loss of job opportunities...... 31 — Farm murders damage rural socio-economic orders...... 32 — Farm murders weaken the multiplier effect...... 32 — Farm murders hasten the onset of food insecurity...... 33 — The political refusal of protection...... 33

Part III: A shrinking social contract and a multipolar field of authority...... 35 — Partisan privileging...... 35 — Racial nationalism and the ANC...... 36 — Ethnic politics in the ANC...... 37 — New prominent sources of symbolic legitimation...... 38 — Coalitions with traditional authorities and local strongmen...... 39 — A shrinking social contract and indigenous cultural groups...... 40 — New forms of political racism?...... 41 — ANC breaking the negotiated settlement of 1994...... 42 — A new social contract excluding some citizens...... 43 — Middle-class emigration and brain drain...... 44 — An increase in self-help initiatives and authority migration...... 45 — A multipolar future order...... 47

Part IV: The shift to a hybrid regime...... 48 — From a flawed democracy to a hybrid regime...... 48 — Drivers of a hybrid regime...... 49 — ANC intolerance of dissenting views...... 50 — ANC politics “eats the state”...... 52 — Neopatrimonial factions competing for spoils...... 53 — Party-state separation, cadre deployment and patronage...... 54 — Patronage politics...... 55 — Reshaping markets and the democratic playing field...... 55 — Smears of racism against political opponents or economic rivals...... 56

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Part V: Factional struggles and Ramaphosa’s challenges...... 58 — Intertwined legal and illegal domains...... 58 — Presidentialism and the executive...... 59 — A deal to elect Ramaphosa?...... 60 — Political mirrors and the circulation of elites...... 61 — Security agencies to reposition themselves...... 62 — Partisan law enforcement actions?...... 62 — A fluid transition...... 64 — Weakened democratic institutions...... 65

Part VI: The legislature, elections and violent politics ...... 67 — A one-party dominant state...... 67 — A political culture of impunity...... 68 — The non-alternation of power in a hybrid regime...... 68 — The national elections of 2014...... 69 — A hybrid regime resting on 35% of eligible voters?...... 71 — Local elections...... 71 — ANC to remain in power beyond 2019...... 72 — Political assassinations in a hybrid regime...... 73 — A climate of fear...... 74 — Threats to provincial and national politicians too...... 74

Part VII: The role of politicized security services...... 76 — Securitizing politics...... 77 — Using state security against civil society watchdogs...... 78 — ANC cadre deployment and parallel security networks...... 79 — Securocrats to remain powerful...... 80

Part VIII: The justice system and the judiciary...... 82 — Legal command and rent extraction by ANC cadres...... 83 — A politically constrained judiciary?...... 84 — The judiciary’s agency...... 85

Part IX: Universities, the media and attempts at ANC control...... 86 — Pressures on the autonomy of universities...... 86 — Rebellious constituencies...... 88 — Failed education policies...... 89 — Media freedom under pressure...... 91 — Strained relations between the ANC and critical journalists...... 93

Part X: ANC policies and economic value destruction...... 95 — Economic value destruction...... 95 — Political intervention and selective patronage...... 96 — State-owned enterprises (SOEs)...... 98 — Staggering unemployment and budget pressures...... 99 — Bad business perceptions of the ANC government...... 99 — EU businesses concerned about ANC policies...... 100 — Domestic business: Increased distrust and divestment...... 101 — Ramaphosa’s limping policy reach...... 102 — The need to tread carefully...... 103

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Part XI: The threat to property and investor rights...... 105 — ANC weakened European investor protection...... 105 — Weakened property rights...... 107 — Constitutional Court neutralized property rights clause in Constitution...... 108 — Disempowered international and South African property owners...... 108 — Creeping state ownership in the mining and energy sectors...... 109 — Increased state ownership and control of the lucrative security industry...... 111

Part XII: Expropriation without compensation and weaker civil rights...... 112 — The ANC turns to expropriation without compensation...... 112 — Racial populism to divert attention from ANC failures...... 113 — How will European policymakers and foreign investors respond?...... 114 — Economic risks and food insecurity...... 115 — Future scenarios point to lower capital formation...... 116 — Infringing civil rights and strengthening the hybrid regime...... 116

Part XIII: Foreign patrons, factional struggles and anti-Western rhetoric...... 118 — Greater reliance on non-Western patrons...... 119 — Looking to China for symbolic and economic leadership...... 119 — Voting against human rights measures at the UN...... 120 — Choosing Russia against “US sponsored destabilisation”...... 121 — Anti-Western bias and paranoia...... 122 — A new Cold War in Africa?...... 123 — Leaving the International Criminal Court (ICC)...... 124 — Anti-Western reflexes?...... 126

Part XIV: The political risks to business in the next two years...... 127

Part XV: Rebuilding the private sector and sustainable communities...... 130

About the author...... 135

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List of Abbreviations

AA - Affirmative Action ACMS - African Centre for Migration and Society AFRICOM - United States Africa Command AG - Auditor General ANC - African National Congress AU - African Union AZAPO - Azanian People’s Organisation BASA - Banking Association of South Africa BBBEE - Broad-based Black Economic Empowerment BEE - Black Economic Empowerment BITS - Bilateral Investment Treaties BLF - Black First Land First BRICS - Brazil, Russia, India, China and South Africa CASE - Community Agency for Social Enquiry CEO - Chief Executive Officer CERD - United Nations’ Committee on the Elimination of Racial Discrimination CIA - Central Intelligence Agency (US) CID - Crime Intelligence Division COPE - Congress of the People COSATU - Congress of South African Trade Unions CR - DA - Democratic Alliance DDR - German Democratic Republic DTI - Department of Trade and Industry ED(S) - Editor(s) EFF - Economic Freedom Fighters EOSA - Enterprise Observatory of South Africa ESKOM - Electricity Supply Commission EU - European Union FBI - Federal Bureau of Investigation (US) FDI - Foreign Direct Income FIFA - International Federation of Association Football FSVTS - Russian Federal Service for Military-Technical Cooperation GATS - General Agreement on Trade in Services GCI - Global Competitiveness Index GDP - Gross Domestic Product GDR - German Democratic Republic GIBS - Gordon Institute of Business Science GIGA - German Institute of Global and Area Studies HSRC - Human Sciences Research Council ICASA - Independent Communication Authority of South Africa ICC - International Criminal Court IDASA - Institute for a Democratic Alternative for South Africa IEC - Independent Electoral Commission IFC - International Finance Corporation IFP - IMF - International Monetary Fund IRR - Institute for Race Relations (formerly known as the SAIRR)

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ISS - Institute for Security Studies JSC - Judicial Services Commission KGB - Committee for State Security (Russia) MEC - Member of the Executive Council MIT - Massachusetts Institute of Technology MK - Umkhonto we Sizwe MP - Member of Parliament MPLA - The People’s Movement for the Liberation of Angola MPRDA - Mineral and Petroleum Resources Development Act, 2002 NDC - National Deployment Committee NDP - National Development Plan NDR - National Democratic Revolution NEC - National Executive Committee NGC - National General Council NGO - Non-Governmental Organization NIA - National Intelligence Agency NIDS - National Income Dynamics Study NP - National Party NPA - National Prosecuting Authority NWC - National Working Committee PAC - Pan Africanist Congress of Azania PIRLS - Progress in International Reading and Literacy Study PPIB - Promotion and Protection of Investment Bill, 2013 PRCA - Public Relations and Communications Association (UK) R2K - Right2Know Campaign RSF - Reporters Without Borders SA - South Africa SAA - South African Airways SABC - South African Broadcasting Corporation SACCI - South African Chamber of Commerce and Industry SACP - South African Communist Party SADC - Southern Africa Development Council SADTU - South African Democratic Teachers Union SAFRI - Southern Africa Initiative of German Business SAHRC - South African Human Rights Commission SAIRR - South African Institute for Race Relations (now known as the IRR) SANEF - South African National Editors’ Forum SANDF - South African National Defence Force SANRAL - South African National Roads Agency SAPS - South African Police Service SARS - South African Revenue Service SC - Senior Counsel SIA - Security Industry Alliance SOE - South African State-Owned Enterprise SONA - State of the Nation Address SSA - State Security Agency STATS SA - Statistics South Africa SWAPO - South West African People’s Organisation TIMMS - Trends in International Maths and Science Study UCT - University of Cape Town UDF - United Democratic Front UK - United Kingdom UKZN - University of KwaZulu-Natal 9

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UN - United Nations US / USA - United States of America WTO - World Trade Organisation ZANU-PF - Zimbabwe African National Union – Patriotic Front

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The ANC’s “toxic legacy”, factional struggles and a renewed hybrid regime

Executive summary political and economic reforms, will remain heavily constrained in the next few years.

Ramaphosa’s limited reach: This report covers There are three major constraints: first, there is a the main dynamics during the period 2014-2018, limited state capability that would take years to but with attention to Cyril Ramaphosa’s first year rebuild, due to the longer-term impact of a decade as president in 2018. of economic value destruction and institutional decay under the African National Congress (ANC), The replacement of President (2009- and as the population has grown by 20% since the 2018) by Cyril Ramaphosa initially resulted in ANC had taken over power in 1994. Secondly, a overoptimistic expectations among some media. new symbolic and political order in the shape of a This report shows that Ramaphosa’s ability to hybrid regime will drive the incentive systems and move beyond rhetoric to actual longer-term

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rules of the game within which even Ramaphosa for Ramaphosa to curb some of the worst abuses will have to operate. Thirdly, the ANC on which and cases of corruption. He may even be able power rests, is deeply factionalized and likely to implement moderate economic reforms. remain so. However, Ramaphosa will be leading an ANC Ramaphosa a co-founder of the hybrid regime: deeply divided and factionalized, with resistance In the past decade, several key forces and drivers to his incumbency and with his opponents inside have reached a critical mass and have combined to the ANC enjoying Zuma’s support and strong form a new political order in South Africa, namely local support bases. Under him, reforms and a hybrid regime. Under the presidency of Zuma, anti-corruption measures may periodically aim Cyril Ramaphosa was deputy president (2014- to strengthen the position and opportunities 2018) during the period of worst power abuse of Ramaphosa’s faction, or to weaken those of and corruption. During Zuma’s presidency, the political opponents, rather than advancing more locus of politics finally shifted from accountable general interests. democratic institutions to a field of power in which weak democratic institutions and non-democratic The current ANC NEC, Ramaphosa’s own support institutions interact. network, his government’s cabinet and the dominant forces in the civil and security forces are This new hybrid regime has effectively replaced also still strongly permeated by non-accountable, the liberal democratic constitutional order, built non-pluralist and neopatrimonial dynamics. This on the consensus between the ANC of Nelson state of affairs is reflected in Ramaphosa himself Mandela, business and the National Party (NP) of being willing to publicly embrace Zuma as part of F.W. de Klerk in the mid-1990s. As Zuma’s deputy the ANC and the ANC’s election campaign in 2019, president, Ramaphosa did not actively oppose despite Zuma’s record of incredible power abuse this shift to a hybrid regime and in fact played an and corruption. important role in implementing it. Unexpected shifts and high political: risk As Ramaphosa has been a member of the ANC’s predicted in the South African Monitor reports National Executive Committee (NEC) since 2007, of the past four years, business in South Africa and from 2014 to 2018 had also been in charge remains exposed to significant political risks of the important ANC National Deployment and uncertain or unpleasant economic policies. Committee (NDC). The committee implemented Factional struggles within the ANC and between the ANC’s cadre deployment, its penetration of the ANC and opposition groups will continue to many domains of the civil service and its weakening generate political turbulence in the next few years. of the separation of powers, constitutional checks The risk of local flashpoints of intergroup tensions, and balances, as well as the rule of law. He bears mediatized and abused for political agitation, has co-responsibility for the years of institutional and risen in many towns and townships in a context economic value destruction by ANC policies. of ANC misgovernance, a struggling economy and scapegoat politics. As the Zuma era demonstrated, the weakened democratic elements in the hybrid regime are Unexpected major shifts and unforeseen high- now subject to the whims of the powerful impact events are possible, as has already happened presidency and entrenched one-party dominant in various forms: the Ramaphosa government’s rule. Fortunately, there now are several foreign decision in 2018 to promote expropriation without and domestic incentives for Ramaphosa, already compensation, the electricity and water crises due a rich businessman, to try and combat the worst to government mismanagement, political protests corruption and abuses of the Zuma era. and assassinations linked to elections, xenophobic attacks, destructive student unrest, and actions A divided and factionalized ANC power base: by the Zuma government that triggered negative Ramaphosa will aim to increase the regime’s responses by international financial markets support and reach, and his style and rhetoric will during the period 2015-2017. be different. As a successor to the most corrupt ANC leader in office to date, it should be possible International business, cultural and education 12

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actors, as well as NGOs are advised to take three political assassinations also form part of the new steps: first, to institute rigorous and robust risk rules of the game, the incentive systems and the mitigation measures in South Africa; secondly, positioning of actors in dealing with political claims, to review the timing, form and extent of planned counter-claims and contestation. It is unlikely new investments and activities in South Africa; that President Ramaphosa, with weakened state thirdly, to also consider alternative opportunities capabilities, will be able to significantly change outside South Africa. If considering activities in these dynamics. South Africa, such actors should pay renewed attention to two important generators of stability State rests on new coalitions: The third key and prosperity: the private business sector and dimension is a new, more volatile and fragmented institutions for sustainable communities in South basis of the state’s authority and power. The Africa. bureaucracy’s capacity remains limited and becomes less efficient in service delivery to a New paradigm needed to understand the diverse and 20% larger population than in 1994. In future: Many media and analysts have clung to an effort to maintain or regain some control, the assessments that underestimated the impact of ANC government and its factions are reshaping the non-democratic, factional and neopatrimonial political order around different local strongmen dynamics in post-1994 South Africa. As a result, and deals, relationships and settlements. Also serious risks to business, citizens and communities under Ramaphosa, the ANC government’s active have been ignored, rationalized away, or realignment with traditional authorities and minimized. In contrast, the framework of analysis adoption of some radical socialist policies of the here has provided accurate early warning for Economic Freedom Fighters (EFF), a breakaway several years about the crises currently emerging, from the ANC, are especially noticeable. the underlying dynamics, as well as the political opportunities and risks to business. Shrinking social contract: The fourth key dimension is that the new political order also Key dimensions of the current order promotes a shrinking social contract. The ANC, sometimes in conjunction with breakaway groups like the EFF, or new parties based on former ANC Shift to a hybrid regime: The first key dimension factions, is driving a stratified and exclusivist of the new order has been a shift to a hybrid project of nation-building. This project privileges regime under Jacob Zuma’s ANC since 2009. The some groups of citizens above others, diverging locus of politics has shifted from accountable from Mandela’s stated goal of neither white democratic institutions to a field of powerin nor black domination in a population of eleven which weak democratic institutions and non- cultural groups. democratic institutions interact. It is unlikely that these dynamics will significantly change during Ironically, the period of this exclusivist project has the first term of president Cyril Ramaphosa also been the one in which the institutional capital (2018-present), whose sources of potential for a prosperous multicultural democracy and a power remains a heavily factionalized ANC and successful model of African liberation has been a bureaucracy permeated by corruption and squandered. State corruption and unemployment shrunken capabilities. skyrocketed and the reliance on foreign patrons grew. The previously strong economy was Oligopoly of violence: The second key dimension downgraded to junk status or just above junk is an oligopoly of violence instead of the state’s status, and professionals from all communities monopoly of violence. South Africa’s violent started emigrating at a previously unheard-of rate. crime and murder rate now approximates those of conflict zones. After 25 years of one-party Both the scope and the nature of the relationship dominant rule, the ANC government clearly does between the governing party and the diverse not consider a restoration of the security of citizens population have changed. Links and mutual and businesses to be a state priority. Elections still obligations between some groups and those in occur. However, intimidation, threats of violence, power, as well as patron-client relationships, rehearsals for violence, violent protests, and even dominate their understanding of rights and 13

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entitlements. They also dominate their However, as is visible in the xenophobic tensions understanding of the South African state, which and attacks, and ANC responses to it since 2008, is no longer seen as first of all being rooted in the nativist discourse excludes not only indigenous citizenship, in impartial service delivery, in the Western and Asian Africans, but also foreign Constitution, and in loyalty to other citizens. Africans and Asians.

Under Zuma, the relationship eventually During the Zuma presidency, Deputy President included re-racialized politics and authoritarian Ramaphosa did not actively oppose this trend. and ethnic dynamics in the ANC. Ramaphosa Since he has come to power, Angie Moshekga, has unfortunately reinforced this approach by the minister of Basic Education, has confirmed focusing land expropriation policies on white that such symbolic de-Westernization continues farmers, although farmers from other groups to be a mainstay of education policies. It serves would also be affected, and by indicating that as a mobilizing tool and to divert attention from government policies would privilege the political the largely defective South African education constituencies supporting the ANC. system after 25 years of ANC rule, which has been unable to prepare huge numbers of citizens for Non-pluralist exclusion of opponents and the demands of a sophisticated and challenging minorities: The fifth key feature is a limited job market and world economy. responsiveness as far as the claims or needs of political opposition groups and some smaller Resource appropriation: The seventh key ethnic groups are concerned. This relationship dimension of the new political order is a different with the diverse population differs from the conception of property rights and the conditions inclusive non-racialism of the Mandela era. It also of wealth, which often clashes with the existing serves to legitimize government actions and to liberal Constitution. The selective economic divert attention from failures in service delivery empowerment of politically-connected actors, and government performance by scapegoat mismanagement and widespread unproductive politics. “politics of the belly” have hollowed out state capabilities and resulted in a weakening of key The ANC government presents its approach as economic capabilities. The ability of the economy the sole approach to African liberation in South to ensure a successful model of African liberation Africa, excluding or silencing other more inclusive, or African modernity for all citizens has been democratic, federal and social enterprise-based significantly weakened, as Ramaphosa himself models of African liberation. Its shrinking social admitted. contract reinforces the limited and partisan protection of citizens. It also legitimizes scapegoat Policies increasingly aim at gaining access to and politics by government and non-government control over the socio-economic formations of actors. During the Zuma presidency, Deputy some indigenous and foreign minority cultural President Ramaphosa did not actively oppose this groups. The nativist symbolic discourse interacts trend, and it remains to be seen whether he will with this process and sometimes serves as its significantly change this approach. legitimization. Both greed and grievance interact. This dynamic, identified in South African Monitor Symbolic de-Westernization: The sixth key for several years already, has now become dimension is the peaceful or violent promotion manifest in the ANC’s policy of expropriation of de-Westernization in the symbolic domain, without compensation. political institutions, as well as in academic institutions. Ironically, the discourses of symbolic Pro-Chinese foreign policy: The eighth key de-Westernization and post-colonialism often dimension is a foreign policy that clearly privileged aim at gaining control over Western material China and Russia during the Zuma presidency, structures and assets, often generated by citizens while being neutral or less favourable to Western who are political opponents. Nativist identity powers. In addition, an interventionist and discourses and new combinations of Christianity developmental state and ANC-aligned business and indigenous African religion are increasingly actors are much more evident in economic prominent in the domestic symbolic domain. diplomacy and various forms of protectionism. 14

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Under Ramaphosa, it is expected that China, where democratic and non-accountable actors rather than Russia, may be privileged, at least and processes interact. This hybrid regime could initially. Domestic short-term political priorities remain in place for years, irrespective of whether will probably often be prioritized above Western Zuma, Ramaphosa, or another ANC president is in foreign direct investment. power.

Self-help initiatives and authority migration: One-party dominance and state capture: One The ninth key feature is the limited, but robust non-accountable factor is the ANC as a ruling party evolution of capacity and self-help initiatives after 25 years in a one-party dominant state. It has within cities, communities, and the private sector. a non-pluralist political culture. Through its policy This feature will involve authority migration and of cadre deployment, it has captured most state shape the new political order. institutions and watered down the separation of powers. State institutions are now largely Between a modular and a mediated state: politically partisan, and the arena of factional The new political order already constitutes an struggles. asymmetric modular state. Organizations and institutions that do not form part of the central Uneven electoral and economic playing fields: The state fulfil several state functions in different ways ANC’s capture of the state has allowed the party in some areas or communities. Although the ANC to become as important a gatekeeper to power as government theoretically has the capacity to fulfil elections, if not more important. It has expanded at least some of these functions, it accepts this its hold on key constituencies and the market, also modular state as part of its governance model. through selective patronage and crony capitalism. Both the electoral and the economic playing fields In some areas of South Africa, the dynamics of have been made uneven. self-help initiatives and authority migration may in time evolve into a mediated state. In such zones, Limited participation: In elections there has “rule of the intermediaries” will act as substitute been a marked decline in the registration and for the rule of the central state. The government participation of eligible voters since 1994. In the will accept this situation and try to align with these 2014 national elections, the ANC only attracted actors, not voluntarily, but based on necessity. an estimated 35% of eligible voters’ support, compared to 54% in 1994. The participation rate Hybrid regime of eligible voters in the local elections of 2016 was approximately 42%. High levels of emigration by skilled professionals, managers, upper and This report finds that during President Jacob middle-class families from all communities at Zuma’s rule (2009-2018), South Africa moved least partly reflect ANC misgovernance and the from a flawed democracy to a hybrid regime. This lack of responsiveness to citizens by the existing transformation is partly reflected in a major shift institutions. A high number of protests constitute in the international media’s reportage on ANC rule forms of political competition aimed at gaining since 1994. Current President Cyril Ramaphosa access to power and wealth outside elections. did not actively oppose this shift during his time as vice-president under Zuma (2014-2018). It is Unaccountable presidentialism: Another possible that he will be able to institute limited driver of the hybrid regime is an unaccountable reform to prevent the worst abuses of such a presidentialism that has exceeded the system from occurring, but it is considered highly constitutional bounds of the office. For years, unlikely that he would be able to fundamentally President Jacob Zuma had been held accountable change the hybrid system as such. by neither his party, nor Parliament in a one- party dominant state. The media and institutions New locus of politics: In South Africa’s hybrid like the public protector were unable to identify regime, the incentive systems and the rules of and admonish examples hereof. However, the the political game have changed. The locus of democratic checks and balances were unable to politics is not in the legislature or elections. The restrain the executive. Ramaphosa has further locus of politics has moved to a field of power increased his political room for manoeuvring by 15

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promoting a change to the Constitution regarding democratic decline in the next few years: they property rights. It seems unlikely at present that are intensified factional competition in the run- he will replicate Zuma’s abuses, but the checks up to the national elections in 2019, a rise in and balances of the system will remain too weak protest politics and intra-ANC positioning; the to keep the executive president completely further politicization of the security forces and accountable. securitization of politics to prop up presidential rule; as well as the weak and highly inequal The securitization of politics: The securitization of economy and more limited state resources, while politics has become a trend in the hybrid regime. the fast-growing population does not experience A long-standing non-pluralist political culture the solid education or job opportunities needed in the ANC, combined with increased factional for stabilization. struggles over positions, access to resources and opportunities within the ANC and its allies, will Some consequences reinforce this development. While Ramaphosa is not a securocrat like Zuma, suspicion and fear will continue to set the tone in the inner circles of Continued factional struggles: The hybrid regime power in the near term. This will not necessarily could remain relatively stable. However, factional be visible to the thousands of tourists and struggles inside the ANC already increased in the businesspeople visiting South Africa. run-up to the 2017 ANC leadership alternation and will continue to play a role at local, provincial and national politics in the run-up to the 2019 Protests and assassinations: Politics in the hybrid regime has also acquired a non-democratic tenor, national elections and thereafter. Unexpected often involving limited respect for civil rights, major political shifts and unforeseen high-impact intimidation and violence. Widespread protests, events resulting from these struggles remain often violent, have been used by communities possible. and segments of the citizenry as part of intra- ANC struggles over spoils and to gain government Uncertain or unpleasant economic policies: benefits. Political protests and assassinations Economic policy swings and delays due to the have become an institutionalised part of local infighting between different factions will continue political alternation, again illustrated by twenty in the next few years. Policy uncertainty will be political killings before, during and after the local experienced most by companies in sectors most elections of 2016. However, the risk of political exposed to the government’s political priorities assassinations now clearly extends to provincial or regulatory and licensing power. Minerals, and national politicians, as well as bureaucrats. energy, security, agriculture, telecoms and pharmaceuticals would be among these sectors. Opaque decision-making: Opaque decision- making, linked to patron-client relations, now More state interventionism: The ANC has permeate the executive and bureaucracy. The proceeded with several regulations, policy judiciary and media remain spaces of freedom, initiatives, bills and laws regarding investor but are under pressure. protection, expropriation, mining and energy, the security industry, affirmative action and empowerment issues, land, intellectual property Democratic decline: The interaction of the above- mentioned forces has created a distinctive hybrid and patents, as well as foreign investors in general. regime. They have resulted in democratic decline The common underlying policy in all of these is the and transformed the political rules of the game, same: they greatly increase the ANC government’s institutions and incentive systems in South Africa. interventionist powers in the economy and The beautiful landscapes, vibrant communities provide potential sources for patronage. and business opportunities of South Africa are still present, but these dynamics will dominate daily Weaker property rights: Planned and actual politics in the near and medium term. measures will weaken property rights and reduce private-sector autonomy, which would strengthen the position of crony capitalists with links to ANC Three drivers: Unfortunately, three drivers will reinforce the dynamics of a hybrid regime and factions, compared to other businesses. The ANC 16

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policy of expropriation without compensation likely to remain high or sometimes even rise. will affect urban and rural property rights and This state of affairs will continue to have an effect will strengthen the discretionary power of ANC in many areas of service delivery, such as the leaders and officials. Attempted land grabs, illegal security of citizens and farmers, electricity supply, occupations and rent-payer boycotts are also likely water management, waste management, roads, to remain a phenomenon, depending on the area. education and postal services, and others that may arise. The impact will differ per province and Looking for new resources: The high levels of locality, with pockets of adequate or service state debt and the needs of the ANC’s patronage delivery in provinces and local areas. networks will drive efforts to look for new sources of income, both domestically and internationally. Labour unrest: Factions within trade unions and The value of some state-run corporations, but also trade unions will compete intensely with each other assets or opportunities of which it should other for members, networks, power, status and be the public custodian, could be capitalized or resources. As a result, labour unrest will be a mortgaged. Beneficiation requirements may also major risk during the next few years. Due to the be emphasized. Sometimes this will have a knock- context in which it will be occurring, the potential on impact on existing government undertakings politicization of disputes could occur fast and towards business. could assume militant forms.

International ANC fundraising: The search for new Local flashpoints: The risk of local flashpoints of sources of income will coincide with an increased intergroup tensions, mediatized and abused for effort at economic diplomacy, both formally and political agitation, has risen in many towns and informally. The diplomacy will be couched in the townships in a context of ANC misgovernance, a rhetoric of branding, using South Africa’s many struggling economy and scapegoat politics. They and unquestioned opportunities. However, the may have an unforeseen impact on business actual results would at least partially strengthen people, assets and operations. the presidential and partisan ANC networks in the hybrid regime, rather than the South African Opportunity cost: Many attractive business state, communities and citizens as a whole. opportunities remain in South Africa. Businesses and NGOs with a high risk appetite will remain Integrity and reputational risks: Factional involved or become active in South Africa. struggles for scarce resources will drive efforts to However, due to the increased political risk of the increase state income through these measures hybrid regime, some actors will also consider the and others, which may be more indirect and opportunity cost when comparing South Africa to informal. Unaccountable presidentialism, local big other markets. men and patron-client networks will play a role in this regard. There are different business and Entrepreneurship training a priority: Under the legal codes of conduct in different jurisdictions; ANC government, parts of the education sector international business is advised to heed best have become among the worst in the world, practices regarding integrity and reputational risk. while the autonomy of others is threatened. International business may find it worthwhile to Favouritism to some foreign patrons: The conduct corporate social responsibility projects factional search for more resources in the hybrid that focus on entrepreneurship training and regime will result in an increased dependency on business education. If the projects involve foreign patrons like China, Russia or other political cooperation between foreign and South African and business actors. Foreign patrons may also institutions of public education, strict criteria and become involved in intra-ANC factional struggles. monitoring to reinforce the remaining spaces of The field of competitors and the importance of academic freedom are recommended in policy- specific competitive advantages of business may relevant education and research. However, it is change suddenly. recommended that business and NGOs focus on projects involving private and community Uneven service delivery: The levels of visible education institutions. state mismanagement and operational risk are 17

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There is a limited but robust evolution of capacity and self-help initiatives within cities, communities, and the private sector. This trend will involve an authority migration over time which will shape the new political order. Business and NGOs are advised to identify potential partners and to use the opportunities involved.

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Part I “Toxic legacy taints ANC”

A major change in foreign media reports on ANC rule during the period covered. In 1994, foreign media praised the coming to power reporting on the ANC of the ANC under Nelson Mandela. During the past few years, however, mainstream media in This report covers the main dynamics during Europe and the United States (US) have become the period 2014-2018, during which time Jacob much more critical. Zuma was president and Cyril Ramaphosa his deputy president. However, it pays attention to The New York Times published an opinion piece Ramaphosa’s first year as president (2018). There on 12 December 2017, entitled “Jacob Zuma and has been a major change in the tenor of media the Theft of South Africa”, in which Ivor Chipkin writes: 19

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A decade of President Jacob Zuma’s leadership There is an understandable relief at the end of the has seen Africa’s oldest liberation movement Zuma era and the victory of Cyril Ramaphosa at the become a caricature of corruption and ANC leadership election conference in December factionalism.1 2017. However, Gareth van Onselen, political analyst at the liberal Institute for Race Relations The Wall Street Journal of 15 December 2017 (IRR), rightly remarks, in an article headed “The had a report “Killings Shake South Africa’s Ruling greatest trick the ANC ever pulled”: Party Ahead of Leadership Contest: At least 40 ANC politicians have died violently since last year, The ANC has mesmerised its supporters to raising questions about the party of Mandela’s forget the horrors it has wrought on South future; ‘like a pig that is eating its own piglets’.”2 Africa, and see only the new leader with his The New York Times of 30 September 2018 promises.7 published a report headed “Hit Men and Power: South Africa’s Leaders Are Killing One Another”, In many media commentaries, Ramaphosa’s own and stating that contribution to the current state of affairs as deputy president and senior ANC decision maker remains under-analyzed or ignored. However, his the recent increase in killings inside the current performance is being watched closely. The ANC is a potent reminder of how far the New York Times of 23 January 2019 reported:

party has strayed from creating, in the For now, several political allies of Mr Zuma who ashes of apartheid, a political order have long been accused of corruption serve in based on the rule of law.3 his cabinet or at the highest levels of the party. And Mr Ramaphosa’s own government has Thomson Reuters published an interview on 14 been tainted by allegations of the same sort of November 2018 headed “South Africa’s land self-dealing that led to the ouster of Mr Zuma. expropriation unnerves investors – World Bank executive”.4 On 1 January 2019, after almost a year Most prominently, his deputy, , of the Ramaphosa presidency, The Guardian ran was a longtime leader of a small province an article by Africa correspondent Jason Burke, where corruption was endemic. Mr Mabuza headed “Toxic legacy taints ANC as it nears 25- has been accused of siphoning money meant year rule in South Africa”.5 for education and other services to finance his meteoric rise in national politics – and deliver The British Financial Times stated on 4 December the votes that gave Mr Ramaphosa a slim 2017: victory in party elections in December 2017…

Prince Mashele, co-author of The Fall of the ANC In recent years, the ANC, which once inspired – a best-selling book that one commentator people across Africa and the world, has come calls a political obituary – says the party is to symbolize deep-rooted corruption. Party “rotten in its entirety”. But most argue that Mr leaders have stolen tens of billions of dollars Ramaphosa could curb the worse excess of the meant to lift up poor black South Africans. Zuma years if only by returning to the milder They have gutted key government institutions corruption of the pre-Zuma years.6 like the tax agency, to gain better access to

1. https://www.nytimes.com/2017/12/12/opinion/jacob-zuma-gupta-corruption.html. 2. https://www.wsj.com/articles/killings-shake-south-africas-ruling-party-ahead-of-leadership-contest-1513333801. 3. https://www.nytimes.com/2018/09/30/world/africa/south-africa-anc-killings.html. 4. http://news.trust.org/item/20181114111607-hsjrq/. 5. https://www.theguardian.com/world/2019/jan/01/toxic-legacy-taints-anc-nears-25-year-rule-south-africa. 6. https://www.ft.com/content/1f9e7a32-d5db-11e7-8c9a-d9c0a5c8d5c9. 7. https://www.businesslive.co.za/bd/opinion/columnists/2018-01-31-gareth-van-onselen-the-greatest-trick-the-anc- ever-pulled/.

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government accounts. They have even taken to On 16 December 2015, The Economist’s report on eliminating rivals, in Mafia-like assassinations.8 South Africa was entitled “The hollow state”: “Time to ditch Mandela’s party”: Two decades after South Africa’s transition to non-racial democracy, its institutions are The Zuma era being sorely tested by President Jacob Zuma. Can they hold? A fierce battle is now being It was during the Zuma era that some Western fought for the survival of that democracy … media pivoted away from its over-optimistic Yet, after more than two decades in charge, the reporting on the ANC. Before the May 2014 ANC’s wariness of untrammelled state power national elections, on 3 May 2014, The Economist has turned into frustration at the checks on published a report entitled: “Time to ditch it. The party is now undermining some of the Mandela’s party”. democratic institutions that it fought so hard to establish … On 12 October 2013, The Economist had already written: The distinction between the ruling party and the state has been eroded. The executive arm The continent’s biggest democracies, South of government (and its state-owned firms) is Africa and Nigeria, have not lately been a being corroded into incompetence by corruption compelling advertisement for representative and cronyism. Independent bodies meant to government. South Africa, ruled by the African safeguard democracy are being subordinated National Congress since 1994, is in danger of ... The challenge for democrats will be to becoming a de facto one-party state.9 protect the independence of the courts and what remains of other institutions. Mr Zuma The Canadian Globe and Mail of 21 February has shown an inclination to wreck them. Unless 2014 stated at the end of President Jacob Zuma’s checked, the danger is that when he goes he will first term in office: “After Mandela, South Africa leave only the husk of a democracy behind.12 has fallen into a leadership vacuum”.10 The new trend continued in 2014 and 2015 during Zuma’s “Ein toxischer Präsident” (“A toxic president”) was second term, when Cyril Ramaphosa served as the heading in a report in Tagesanzeiger on 19 his deputy president. “The political crisis in South January 2016.13 On 3 November 2016, its headline Africa: Country without leadership”, reported Der was “South Africa’s bought government”.14 11 Tagesspiegel on 5 June 2015. However, the ANC as a party, which accepted Zuma’s leadership for many years, was also

8. https://www.nytimes.com/2019/01/23/world/africa/south-africa-corruption.html. 9. https://www.economist.com/news/leaders/21587787-too-many-dinosaurs?fsrc=rss. 10. https://www.wsj.com/articles/south-africas-ruling-anc-loses-its-luster-1378507776; https://www.theglobeandmail. com/globe-debate/south-africas-post-mandela-malaise/article17008078/. Also seehttp://www.sz-online. de/nachrichten/wenig-hoffnung-am-kap-2867042.html; http://www.welt.de/wirtschaft/article129386266/ Suedafrikas-weisse-Elefanten-sind-Brasiliens-Horror.html; http://www.ipg-journal.de/kommentar/artikel/20-jahre- demokratie-in-suedafrika-ein-land-in-der-krise-369/; http://www.fr-online.de/politik/suedafrika-nach-mandela- ende-der-euphorie,1472596,26950770.html; http://www.tagesanzeiger.ch/ausland/naher-osten-und-afrika/Am-Kap- der-unerfuellten-Hoffnungen/story/16237015; http://www.kas.de/suedafrika/de/publications/37569/. 11. https://www.ft.com/content/e6e63754-d964-11e4-8ed9-00144feab7de; “Die politische Krise in Südafrika: Land ohne Führung”, Der Tagesspiegel, 5 Juni 2015. 12. http://www.economist.com/news/middle-east-and-africa/21684146-two-decades-after-south-africas-transition- non-racial-democracy-its. 13. http://www.tagesanzeiger.ch/ausland/naher-osten-und-afrika/ein-toxischer-praesident/story/22710192. 14. https://www.nzz.ch/international/aktuelle-themen/korruptionsskandal-um-praesident-zuma-suedafrikas-gekaufte- regierung-ld.126230.

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criticized. The heading of Financial Times on Many of the best international media were unable 5 December 2017 was “The Zuma years: the to sufficiently understand political dynamics in fall from grace of South Africa’s ANC”.15 On 16 2016 to foresee the possibility of a Brexit in the February 2019 its headline stated: “Jacob Zuma’s United Kingdom (UK) or a Trump presidency in the exit gives ANC a final chance in South Africa: Now USA. It is to be hoped that such clouded vision will Cyril Ramaphosa must show the ruling party has not be the case in South Africa too. After all, it is the capacity to tackle corruption and reduce further away from the main international power inequality”.16 centres and also of less concern to many Western and Asian policymakers and public audiences. Ideas have consequences The position of citizens and communities in African countries is much more vulnerable than The international media, European business that of policymakers in far-away and largely people, some diplomats and some policy think sheltered neighbourhoods. To what degree will tanks already acknowledge the new dynamics foreign policymakers and international business of a hybrid regime in South Africa. However, – and academic analysts – acknowledge the new disincentives to acknowledging democratic dynamics of the ANC’s hybrid regime in South decline still exist in some circles. Stephen Brown Africa? states that most sub-Saharan African countries are neither liberal democracies, nor fully authoritarian. Officials from Western governments that provide New paradigms needed to assistance to these hybrid regimes often become understand the ANC’s hybrid regime apologists for their lack of democracy. Rather than cogently enquiring why democracy promotion The framework of a hybrid regime here has activities should not be a priority, such donor provided accurate early warning for several years officials frequently claim either that their host about the crises that emerged and the political country is more democratic than it actually is, or risks to business. Without a paradigm shift away that it could not be any more democratic for the from the anchoring biases of the past, foreign time being.17 business, NGO and policy-making actors will be unable to understand events. They will also Some international media have previously clung continue to be shocked and caught unprepared by to frameworks of understanding that completely the political and economic volatility that continues underestimated the impact of non-democratic, in South Africa.18 factional and neopatrimonial dynamics in post- 1994 South Africa. New signals and inflection In December 2017, the hybrid regime in South points under President Zuma were squeezed Africa was acknowledged in a study by Jason into frameworks anchored in the Mandela era, Sumich of the German Institute of Global and which ended already more than eighteen years Area Studies (GIGA): ago. As a result, serious risks to business, citizens and communities were ignored, sugar coated Namibia’s South West African People’s or denied. The costs thereof are borne by those Organisation (SWAPO) and, especially, South who believed and acted on overly partisan and Africa’s African National Congress (ANC) were sometimes very outdated analyses. once symbols of the triumph of democracy

15. https://www.ft.com/content/1f9e7a32-d5db-11e7-8c9a-d9c0a5c8d5c9. 16. https://www.ft.com/content/b4d39db6-1308-11e8-940e-08320fc2a277. 17. Stephen Brown, “‘Well, what can you expect?’: Donor officials’ apologetics for hybrid regimes in Africa”, Democratization, 18(2), 2011. Also see https://2010sdafrika.wordpress.com/2018/12/10/gtai-analysepapier-zu- suedafrika/. 18. https://www.businesslive.co.za/bd/opinion/columnists/2018-01-18-hilary-joffe-overseas-firms-treading-sas- minefield-need-to-know-what-the-bombs-look-like/. 22

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against racist oppression, with the ANC’s former The hybrid regime analysed in this report has leader, Nelson Mandela, attaining the status its roots in the presidency of of a secular saint. Over the last two decades, and had become entrenched during the two though, the ANC and SWAPO seem to have presidential terms of Jacob Zuma. The report joined Frelimo, the MPLA, and the Zimbabwe proposes, especially in Part V, that Ramaphosa African National Union-Patriotic Front (ZANU- may introduce some reforms and curtail some of PF) as examples of “hybrid regimes”, where the hybrid regime’s worst excesses. However, he governments combine authoritarian rule with will be unable to bring significant change to the regular elections. While the political lustre of dynamics of the system. many dominant-party regimes has become somewhat tarnished, most, with the exception of Zimbabwe, have experienced prolonged periods of economic growth. South Africa, however, did so at a substantially lower rate than some others; though, the fall of apartheid allowed it to consolidate its position as the regional hegemon.19

19. https://www.giga-hamburg.de/de/publikation/der-langsame-niedergang-der-dominant-party-regimes-im- suedlichen-afrika. 23

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Part II Violent crime, partisan protection and food insecurity

The replacement of President Jacob Zuma (2009- rebuild, due to the longer-term impact of a decade 2018) by Cyril Ramaphosa initially resulted in of economic value destruction and institutional overoptimistic expectations among some media. decay under the ANC, and since the population However, Ramaphosa’s ability to move beyond has grown by 20% after the ANC had taken over rhetoric to actual longer-term political and power in 1994. Secondly, a new symbolic and economic reforms will remain heavily constrained political order in the shape of a hybrid regime in the next few years. will drive the incentive systems and rules of the game within which even Ramaphosa will have to There are three major constraints: First, there is operate. Thirdly, the ANC on which power rests, is a limited state capability that would take years to deeply factionalized and likely to remain so. The

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ANC’s government inability and unwillingness Violent crime has shaped the new democracy and to provide better security to its citizens and is also shaping the current hybrid regime. Since communities reflects all three constraints. 1994, more than 400 000 people have died due to violent crime and hundreds of thousands have Weak fulfilment of the been raped in South Africa. The statistics of crime of Interpol have often been much higher than government’s security function the statistics of the South African Police Service (SAPS). Police statistics are widely regarded as According to thinkers from Hobbes to Alan underestimating the situation. Security researcher Whaites, the provision of security is one of the David Bruce concludes: state’s survival functions, if not the key one. Yet, Zuma did not consider the above state of insecurity The implication is that the non-recording of sufficiently important to address it in depth in his crime is widespread within the SAPS and that 2015, 2016, or 2017 State of the Nation Address this non-recording is responsible for much of (SONA), nor did Ramaphosa in 2018. The low the reduction in violent crime that has been government responsiveness to citizen demands reported in statistics over recent years. The regarding this issue is another dimension of the implication of this, in turn, is that current crime current political order. statistics cannot be regarded as a reliable indicator of trends in crime, particularly in According to Human Rights Watch, violent crime.22

… in 2018, South Africa’s record on respect for The police have lost their grip on serious violent human rights and the rule of law remained crime in South Africa, despite a budget increased poor under new president, Matamela Cyril by almost 50% since 2011-2012. According to Ramaphosa, who took office in February the Institute for Security Studies (ISS), “[o]ngoing following Jacob Zuma’s resignation. Corruption, political interference at all levels of the SAPS poverty, high unemployment, and violent has severely weakened the organisation”.23 The crime significantly restricted South Africans’ attempted recovery under Ramaphosa started enjoyment of their rights.20 with the permanent appointments of Lieutenant- General Khehla Sitole as national police While the government enjoys external sovereignty commissioner in November 2017, Major-General in the international world, its monopoly of violence Peter Jacobs in charge of crime intelligence in and ability to protect the population has shrunk March 2018 and, two months later, of Lieutenant- markedly since 1994. Professor Susan Booysen General and Advocate Godfrey Lebeya in charge stated after xenophobic attacks in 2015: of the Hawks (South Africa’s Directorate for Priority Crime Investigation). However, the impact of years of instability, political pliancy and the The government has lost authority SAPS’s internecine battles will be felt for quite over vast tracks of South Africa, over some time.24 the underworld where xenophobia, looting and parading mobs rule.21

20. https://www.hrw.org/world-report/2019/country-chapters/south-africa. 21. http://www.iol.co.za/sundayindependent/xenophobia-a-conundrum-for-sa-1.1847245#.VTOqrZUcTIV. 22. David Bruce, Tackling armed violence: Key findings and recommendations of the study on the violent nature of crime in South Africa (The Centre for the Study of Violence and Reconciliation and The Department of Safety and Security, 2010), pp 5-6, 15. 23. https://issafrica.org/about-us/press-releases/police-not-coping-with-serious-violent-crime. 24. https://www.dailymaverick.co.za/article/2018-09-11-crime-stats-from-hell-brought-to-you-by-years-of-instability- political-pliancy-and-the-sapss-internecine-battles/.

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Crime statistics released by the government that usually only emerges in areas of armed show there were more than 20 000 murders in conflict. The reason is that a violent incident can 2017, a 7% increase over the previous year. In the occur anywhere, and at any time, in a completely past ten years, more than 175 000 people have arbitrary, but brutal manner.28 been murdered in South Africa. These numbers are higher than the total number of deaths in In this regard, the fear of violent crime against the Afghanistan War, the Vietnam War, or the oneself and loved ones in private spaces like bombing of Hiroshima.25 Almost the same number homes plays an important role. Armed house of attempted murders were reported to the police. robbery involves hold-ups of a home’s inhabitants, On average, 109 men and women were raped often entailing threats or actions involving assault, each day, and a total of 22 343 incidents of house rape, torture and murder of children, the elderly, robbery were recorded, amounting to an average the disabled or women. of 61.2 per day.26 The SAPS crime statistics of 2018 indicated Police Minister said a surge in murders that incidents of many categories of crime have to 57 murders per day has turned South Africa increased in frequency. Statistics South Africa’s into a place that “borders on a war zone”. In (Stats SA) Victims of Crime Survey stated that half the last five years there has been an increase in of the victims do not report their trauma to the murders after more than a decade of decline. Last police, and in some cases such as house breaking, year in South Africa, there had been 35.8 murders less than a fifth of the incidents are reported. The per 100 000 people. In a putative democracy, this difference between the estimates of Stats SA and is too close for comfort to the actual numbers in crimes recorded by the SAPS might be explained armed conflicts: in Somalia, where government by the public’s declining trust in the criminal justice troops backed by the African Union (AU) are system. Over 42% of people believe violent crime fighting al-Shabab militants, the ISS recorded has increased, up from 39% the previous year, and 5 500 conflict-related deaths in 2017, which is a only 79% of people feel safe during the day, down rate of 38.4 per 100 000 people. For Afghanistan, from 87%. Only 32% of people feel safe when it’s there were 14 000 deaths in the conflict between dark, down from 35%. Levels of satisfaction with insurgent groups and pro-government forces, a the police and the courts have continued to fall rate of 40.4, and in Iraq, 15 000 conflict-related since 2013/2014. The survey found that “last year deaths – a rate of 40.3.27 54% of people were satisfied with how police deal with criminals and 41% are satisfied with the how Fearful citizens in a putative courts deal with crime”.29 democracy South Africans are also becoming more scared to walk on their own in their areas of residence: When assessing the impact of violent crime on “The feeling of safety when walking alone has South Africa’s citizens, it is of major importance been declining,” says Stats SA. Around a third of to take note of the psychological impact of fear. households surveyed do not go to open spaces or As noted by foreign psychologists visiting South parks due to the fear of crime, while just less than Africa, in some parts of the country a continuous a quarter would not allow children to play outside fear of violent crime is prevalent. It is of a nature for the same reason.30

25. https://www.timeslive.co.za/news/south-africa/2018-09-11-crimestats-ten-years-of-murder-in-south-africa-in-one- terrifying-graphic/; https://www.statssa.gov.za/publications/P0341/P03412016.pdf. 26. https://www.fin24.com/Finweek/Opinion/the-cost-of-crime-20180815. 27. https://www.bbc.com/news/world-africa-45547975. 28. See the report by Fred de Vries, correspondent for the Dutch newspaper Trouw and author of Rigtingbedonnerd, an acclaimed book on South Africa at http://www.trouw.nl/tr/nl/4324/Nieuws/article/detail/1354583/2007/01/12/De- Johannesburgziekte.dhtml and http://soulsafari.wordpress.com/2012/11/05/afrikaners-rigtingbedonnerd-exclusive- interview-with-fred-de-vries/. 29. https://www.dailymaverick.co.za/article/2018-10-11-crime-is-increasing-and-were-more-fearful/. 30. https://www.dailymaverick.co.za/article/2017-02-14-analysis-south-africa-a-country-of-fear-say-latest-crime- perception-stats/#.WmpC-6jibIW. 26

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Citizens have been forced to look after their own any crime report but one hears of it frequently security, including private home-based measures, from a range of sectors. neighbourhood watches, community patrols and private security companies. However, government This cost is not measurable, but is immense ‒ responses to fulfil its protective function have and almost all of these “promotions” are never remained unable to deal with violent crime against reported. This comes at a cost of pupil’s careers citizens and communities. and possibilities while allowing politicians to continue to blame the old order for the current The impact of major crime on inequality. Train commuters pay about five times more to business use taxis and many lose their ability to work as they cannot afford taxi fees. Suburbia ends Service delivery and student protests have become up paying more for insurance of vehicles, a key concern for business owners as protestors household contents and of course security often resort to malicious damage to property, services. This money could have been spent which can result in business interruption. In 2018, more productively on other items such as cars a record high of 1 444 protests were documented, or gardens. The newly built power stations cost with incidents of property vandalism, the burning more than in other regions, resulting in higher of vehicles and sometimes violently prohibiting electricity prices. The massive debt accrued others from accessing the products/services is causing higher interests for government offered by organisations continuing to rise. The debt as well as downgrades for the country. level of hijacking/theft by force had also risen Additionally, cable theft causes outages in sharply. The 2017/2018 National Crime Statistics suburbs, trains don’t run and the internet goes Report released by the SAPS revealed a 56.6% down. 32 increase in cash-in-transit heists and an alarming escalation of more than 333% in bank robberies.31 Nativism and violent expropriation The economist, Mike Schüssler, gave an incisive South Africa is a young state, just over a hundred overview: years old, with shifting political group identities The damage that crime does is of course not and territorial borders. It is currently experiencing just an economic question but does increase its fourth political order since 1910. Its current nine the cost of living and the cost of doing business. provinces, with their distinctive landscapes and This is my area of expertise and, sticking to my dynamics, are often grafted on previous political knitting, I think it is important that some points orders: African and European settler societies, are made. Starting at the cost of government Asian and Khoisan structures, the indigenous corruption: this was put at about R240 billion chiefdoms, Afrikaner republics, and Matabele and a year in 2015 due to tenders for the state and Zulu empires of more than five hundred years of its companies being at least 40% overpriced. history. Moreover, this excludes irregular expenditure which has amounted to more than R100 billion The position of different groups in this population in the last few years. is currently being recast. The social contract between the government and the diverse Bribes in everyday life, for anything from getting population is shrinking and becoming stratified. In out of a traffic fine to securing a teaching post, the symbolic domain, the influence of a nativist are rife. Bribes for jobs are not even measured in mythology that creates new boundaries of the “nation” is quite high, compared to two decades

31. https://businesstech.co.za/news/business/273971/big-increase-in-hijackings-and-other-crimes-targeting-businesses- in-south-africa/. 32. https://www.moneyweb.co.za/moneyweb-opinion/soapbox/crime-pays-more-than-honesty-in- sa/?utm_source=Moneyweb&utm_campaign=b61f1100df-EMAIL_CAMPAIGN_2018_10_19_03_47&utm_ medium=email&utm_term=0_b106a40770-b61f1100df-213156865&mc_cid=b61f1100df&mc_eid=31a093eb05. 27

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ago.33 The formal democratic institutions, the in his capacity as North West Premier, stated that neopatrimonial networks and the autocratic foreign nationals who own spaza shops in the processes and practices of the hybrid regime are province should look for alternative places to do now combined in racially-focused and exclusivist business.38 nation-building projects. Widespread attacks targeting foreigners had These projects differ from the inclusive non- previously taken place in May 2008, killing 62 racialism of the Mandela era. They are also people and making international headlines. employed to legitimize government actions and Virtually no one has been convicted over past to divert attention from failures in service delivery outbreaks of xenophobic violence. Another wave and government performance. In the ANC’s of violence occurred in April 2015, leading to an competition for support, they also interact with outcry across Africa and the recall of the Nigerian and respond to the Afro-radicalism and economic ambassador. These were not attacks caused nationalism promoted by the EFF political party of by small bands of provocateurs or criminals; .34 evidence suggested widespread participation in, and support for, the violence in the affected Often these symbolic politics interact with the communities.39 politics of the belly and the politics of patronage: nativist mythology is used to legitimize efforts During 2018 there were numerous incidents to gain access and break up the socio-economic involving threats and violence against refugees, formations of some indigenous and foreign asylum-seekers and migrants, with looting or minority cultural groups. destruction of their small businesses and homes. According to the 2019 report of Human Rights Afrobarometer’s surveys show that a vast Watch, majority of South African citizens distrusts (black) foreigners, wishing to restrict their residence African foreign nationals in South Africa, rights and prohibit their eventual acquisition of including refugees and asylum-seekers, citizenship.35 The ANC reinforced or responded continued to face xenophobic violence and to some of these demands. , threats of violence in 2018 … In August, at least then the ANC’s secretary general, announced on four people died when xenophobic violence 12 April 2014 that the government would restrict erupted in Soweto, south of Johannesburg. small foreign-owned businesses from being Mobs of protesting locals beat foreign opened in the country’s townships and rural areas, nationals, mostly Somalis, and looted their so as to create opportunities for South Africans.36 shops. The protesters accused foreign nationals of selling fake and expired food products. A In January 2015, the minister of Small Business few days after the Soweto violence, a new Development, , said that foreign anti-foreigner political group marched in business owners should share their business Johannesburg, demanding the deportation of practices with locals if they wanted to live and all undocumented foreigners in South Africa by trade in South Africa without fear of disturbance the end of the year.40 or violence.37 In March 2016, ,

33. Sabelo J. Ndlovu-Gatsheni, “Africa for Africans or Africa for ‘Natives’ only? ‘New nationalism’ and nativism in Zimbabwe and South Africa”, Africa Spectrum, 64(1), 2009, pp 76-78. 34. http://africasacountry.com/a-malignant-nativism-threatens-post-apartheid-democracy-in-south-africa/. 35. http://mg.co.za/article/2015-05-06-violence-sets-sa-xenophobia-apart. Also see Loren Landau, “Urbanization, nativism, and the rule of law in South Africa’s ‘forbidden’ cities”, paper delivered at a workshop, “The promise of freedom and its practice: Global perspectives on South Africa’s decade of democracy”, Wits Institute for Social and Economic Research, University of the Witwatersrand, Johannesburg, South Africa, 17 May 2004. 36. http://www.worldbulletin.net/news/133623/s-africas-anc-to-restrict-small-foreign-businesses. 37. http://www.thedailyvox.co.za/small-business-minister-wants-spaza-shop-trade-secrets/. 38. “North West premier not doing SA any favours”, Business Day, 23 March 2016. 39. http://afrobarometer.org/publications/wp173-explaining-south-african-xenophobia. 40. https://www.hrw.org/world-report/2019/country-chapters/south-africa. 28

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Professor Loren Landau, director of the African Farm murders: violent crime and Centre for Migration and Society (ACMS) at the University of the Witwatersrand, explained the rural terrorism political dynamics involved: A particularly serious category of crime, is attacks on Faced with perennial shortfalls of services, the small community of about 30 000 commercial dwellings and jobs, local leadership has farmers in South Africa. More than 4 900 farm allowed and abetted the scapegoating and attacks have been recorded in the period 1990 appropriation of foreign-owned shops, houses to 2017, with a conservatively estimated 1 980 or goods. With new resources to distribute and farmers and farm workers being killed.43 These 41 a demon to blame, they come out winners. attacks are being perpetrated against members of all groups, including both farm workers and In January 2018, Shenilla Mohamed, executive farm owners. Most of the victims of such attacks director of Amnesty International South Africa are Afrikaner farmers and their families, but black stated: victims constitute a third of the overall numbers. Many permanent and temporary workers and There is a lack of political will on the part of their families also lose their source of livelihood the government to deal with issues of violence as a result of a farmer’s death.44 and xenophobia in a sustainable way, and the consequence of this inertia has resulted in Farm attacks and brutal farm murders threaten continuing sporadic bursts of violence which local citizens and foreigners, as well as food often end in deaths, injuries and damage to security in South Africa. In February 2017, British property … nothing concrete has been done national Sue Howarth, 64, and her husband, to combat impunity for xenophobic violence Robert Lynn, 66, were asleep when they were and other related longstanding human rights attacked in their farmhouse near the South African 42 violations. town, Dullstroom. During the attack, the robbers burnt her with a blowtorch before shooting her After 25 years of underperforming one-party and stuffing a plastic bag down her throat.45 In dominant rule, there is an undercurrent of heated April 2017, Dutch citizen Peet van Es was killed by rhetoric and volatile scapegoat politics in South five attackers on his farm after being tortured for Africa. Foreign Africans are excluded, marginalized five hours.46 or not recognized in the nativist discourse. So are indigenous Western Africans and Asian Africans. Doctor Danny Titus of the South African Human Rights Commission (SAHRC) stated on 26 August

41. http://www.washingtonpost.com/blogs/monkey-cage/wp/2015/05/11/political-rhetoric-and-institutions-fuel- xenophobic-violence-in-south-africa/. 42. https://www.amnesty.org/en/latest/news/2018/01/south-africa-government-must-show-political-will-to-end- xenophobic-violence/; http://dailypost.ng/2018/01/11/nigerian-owned-guest-houses-burnt-south-africa/. 43. Dirk Hermann, Chris van Zyl and Ilze Nieuwoudt, Treurgrond [Land of sorrow] (Kraal, Pretoria, 2013); http://www. issafrica.org/iss-today/farm-attacks-and-farm-murders-remain-a-concern; figures provided by crime analyst Lorraine Claasen, February 2018; AfriForum media statement dated 29 January 2019. These figures are the result of statistics kept and verified by the Transvaal Agricultural Union and the civil rights organisation AfriForum, also compared to police statistics. Not all incidents are reported to the police however, and some are excluded because of differing interpretations of the definition of a farm attck orrder. mu 44. “Widow pours out her heart”, The Witness, 23 October 2014; “Ixopo farm attackers jailed for life”,Media 24, 31 October 2014. 45. http://www.telegraph.co.uk/news/2017/02/23/british-woman-killed-south-africa-robbers-torture-blow-torch/; http://www.telegraph.co.uk/news/2017/02/28/husband-woman-tortured-south-africa-robbery-speaks-horrific/. 46. https://www.elsevierweekblad.nl/nederland/achtergrond/2017/04/nederlandse-boer-in-zuid-afrika-vermoord-na- uren-marteling-488961/. 29

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2016 to Parliament that the criminal justice system citizens against violent crime led to nationwide did not provide any deterrent to crime. “When we protests on 30 October 2017. On that date, tens of observe the brutality of the killings it is clear that thousands of people protested peacefully in what there is no respect for life and that perpetrators became known as “Black Monday”, blockading operate with impunity,” he said. Titus told the roads in many parts of South Africa. The Black committee that the perception that violent farm Monday protests were sparked by the murder of crimes only affected white farmers was not true. farmer Joubert Conradie, the married father of Black farmers were equally affected, he said.47 two children, on the farm in the Western Cape where he was born.51. However, despite these and Farm attackers strike in groups that vary from other protests, the government has not responded one to as many as thirteen attackers per incident. effectively to the concerns of farmers.52 Attacks are planned in detail and a disturbing trend is the increasing use of technology by farm Strangling rural stability and attackers.48 Few of these incidents involve large- scale theft. Usually arms, vehicles, mobile phones economies and cash are stolen, but combined with high levels of brutality, violence and even torture. Eileen de Then President Nelson Mandela stated at the Jager and Roelien Schutte, two sisters who clean Summit on Rural Safety in 1998: “Beyond the up crime scenes nationally, say that they have immediate human suffering, lack of security and seen a definite increase in extreme violence in stability in our rural and farming community farm attacks. They are of the opinion that if the causes serious disruption to our economy.”53 public were to realise what actually happens International policymakers and business analysts during such attacks, it would serve as a wake-up consider agriculture and agribusiness as key call that would mobilise communities. De Jager sectors in the socio-economic development of states: many countries of Africa.54 However, its capacity is often underdeveloped, resulting in it being the Victims are often tortured before recipient of development aid. being dragged behind cars, or they are In the case of South Africa, a unique agricultural mutilated with boiling water. It is sector has been developed in one of Africa’s often arid and more challenging countries to 49 beyond insane. farm. The unique value of this historical exception to the economy has in recent years often been Food security has dropped in the past five years overlooked due to domestic political agendas and to include less than 50% of the population, which campaigns. emphasizes the need to give priority attention to these key economic actors and this vulnerable For years, the ANC government has been unable 50 community. Public outrage against the inability of to make a committed effort to provide security the ANC government to protect farmers and other

47. http://www.news24.com/SouthAfrica/News/farm-murders-on-the-decrease-parliament-told-20160826. 48. https://www.afriforum.co.za/figures-announced-today-farm-murders-farm-attacks-rise-2016/. 49. http://news.iafrica.com/sa/829892.html. 50. http://www.news24.com/SouthAfrica/News/Food-security-in-SA-declining-study-20130806. 51. https://www.dailymaverick.co.za/article/2017-10-31-groundup-protesters-march-through-cape-town-against-farm- murders/#.Wn840kxuLIU; http://www.huffingtonpost.co.za/2017/10/30/genoeg-is-genoeg-farmers-unite-in-black- monday-protest_a_23260231/. 52. https://www.afriforum.co.za/thousands-march-union-building-farm-murders/. 53. https://www.dailymaverick.co.za/article/2017-03-01-rural-safety-are-farm-murders-being-underplayed-for- politics/#.WvAo_4iFPIU. 54. https://www.brookings.edu/blog/africa-in-focus/2016/01/22/foresight-africa-2016-banking-on-agriculture-for- africas-future/.

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to the valuable farming communities. However, goods. The sector has strong linkages with the reports by Western media55 and responses by rural non-farm economy, which helps to restabilize senior Australian decision makers condemning the sometimes depopulating or stagnating smaller the dire situation of farmers in South Africa, towns in the vast areas of South Africa. indicate that international consciousness about the problem can no longer be prevented.56 Productivity linkages represent the non-market linkages between the agricultural and non- The ANC’s policy of expropriation of farmers’ farm economy. Examples include the positive land without compensation has reinforced wider effect of lower food prices, which impacts on concerns about a further weakening of property worker nutrition and productivity. Food security rights in South Africa, also in urban areas. However, and political stability, the beneficial effects of there are many ways in which farm murders have knowledge flows that accelerate productivity a negative effect too, not only on the victims and growth in both agriculture and non-farm their families and close communities, but also on production, and the beneficial effects ofthe the broader economy. agricultural sector on the rural non-farm economy are also included. Weakening rural economies57 The South African agricultural sector does not The contribution of agriculture and agribusiness play a growth-leading or initiating role in the to the national economy has been almost 2.5% of economy, due to its relative size. As a result, the GDP for years. Examples of agribusinesses would growth impact of agricultural exports and linkages include farming operations, input manufacturers, with the rest of the economy on a national level input suppliers and co-operatives, food processors, is significant, but limited. However, the sector distributors, traders and others. Agricultural plays a growth enabling role, by supplying food linkages can be divided into four main groups, to consumers at the lowest possible price by namely production, consumption, productivity either producing it domestically or affording food and factor market linkages. imports with the exchange earned in the export of agricultural produce. In terms of national production linkages, the agricultural sector and the sectors with which it Farm murders lead to a serious has the strongest linkages represent around 7% of the total economy. Production linkages represent loss of job opportunities the backward and forward linkages between the agricultural sector and rest of the economy. The Factor market linkages represent the impact of backward linkages arise through the inputs bought agricultural income on the rest of the economy. by the agricultural sector from the primary and This includes the investment of farm income in manufacturing sectors, and the forward linkages non-farm investments, and other factor flows, through the agricultural products supplied to the such the flow of capital and labour to the rest of manufacturing sector for further processing. the economy.

Consumption linkages represent the spending Statistics on agricultural employment differ of farm families on locally produced consumer according to definition and source, but it is safe

55. https://www.stern.de/politik/ausland/kriminalitaet-in-suedafrika---weisse-farmer-im--feindesland--7617322. html; https://www.daserste.de/information/politik-weltgeschehen/weltspiegel/videos/suedafrika-weisse-Farmer- video-100.html; http://www.dailymail.co.uk/news/article-5610567/South-African-farmers-wife-reveals-thug-shot- husband-dead-children.html. 56. https://www.sbs.com.au/news/dutton-considering-several-white-south-african-farmer-visa-applications; http:// www.news.com.au/finance/economy/world-economy/thank-you-australia-hundreds-rally-in-brisbane-to- highlight-the-plight-of-south-african-farmers/news-story/80c20ce7015e12e4de4cf8e49a105d0e; https://www. thesouthafrican.com/australian-ag-sa-farmers-refugee-status/. 57. This section is based on https://agbiz.co.za/uploads/documents/careers/13_04-thesis_jan_c_greyling_published.pdf.

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to say that the sector employs around 700 000 the brutal murder of the above-mentioned workers. The agricultural sector is also labour- Western Cape farmer, Joubert Conradie, on 24 intensive, compared to other sectors, because it October 2017. The protests constituted some of employs about 4.6% of the total labour force. The the largest multiracial protests in South Africa mining and manufacturing sectors, in comparison, against farm murders and violent crime since represent 8.5% and 12.5% of the economy, whilst 1994, and included blockades of roads in many employing only 2.3% and 11.8% of the labour force parts of South Africa.59 respectively. The agricultural sector therefore uses two units of labour per unit of value added, Farm murders also seriously rupture the social whilst the ratio is 0.3 and 0.94 for the mining and capital and economies of families and small manufacturing sectors. communities in several rural areas in the northern provinces of South Africa, where This makes the sector one of the biggest underdevelopment and stagnant small towns employers in the economy. During a period of already present challenges. high unemployment and underemployment of about 27% in South Africa, including more than Farm murders weaken the 60% youth unemployment, the stabilizing role of agriculture in providing jobs cannot be emphasized multiplier effect60 sufficiently. The above-mentioned approach of linkages, Farm murders damage rural socio- though correct, is limited, because it simply looks at the direct contribution of the sector to GDP. One economic orders could also use multipliers to estimate the indirect impact of changes in the sector on the rest of In some provinces, the impact of farm murders on the economy. These multipliers, calculated from employment, social capital and the local economy national statistics, show that primary agriculture is particularly significant. More than 18% of job has a backward linkage of 2,14. This constitutes opportunities in the Western Cape province are the fifth highest result in a grouping of twenty in agriculture or agribusiness.58 The Western sectors of the economy. Cape accounts for about 60% of South Africa’s agricultural exports. The local manufacturing Thus, a R1 million increase in demand for sector obtains up to 70% of its inputs from agricultural output will increase the combined agriculture or agribusiness. output of the other production sectors in the economy by R2.14 million (inclusive of the original Dimensions related to agriculture also reinforce R1 million of the agricultural sector output). the context of local and international tourism. Tens The closely related food, beverage and tobacco of thousands of German, French, Dutch, British industry, is calculated at 2.3, in the third position. and other citizens reside in the Western Cape and elsewhere in South Africa, many of them also as The calculated forward linkage of the sector is farm-owners. 1.81. If there is a R1 million increase in the cost of value added in the agricultural sector, then the The high levels of social capital reflected in the combined value of output of the other sectors in agricultural sector of the Western Cape played a the economy will increase by R1.81 million as a major role in the fast mobilization of provincial result of price increases. urban and rural communities to protest against

58. https://www.iol.co.za/business-report/why-western-cape-agriculture-matters-to-sa-economy-10007415. 59. https://derstandard.at/2000068573136/Debatte-ueber-Morde-an-Weissen-reisst-Suedafrikas-Wunden-auf. 60. This section is based on http://www.grainsa.co.za/a-look-at-the-contribution-of-the-agricultural-sector-to-the-south- african-economy. 32

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Agriculture was the best performer across the The political refusal of protection first three quarters of 2017 and was the largest contributor to the country’s two percent GDP Several factors politicize the issue of farm murders: growth in the third quarter.61 the ANC’s National Democratic Revolution (NDR) policy, also regarding land possession and Farm murders hasten the onset of ownership; its cadre deployment, also in the food insecurity62 police; its focus on own patronage rather than on service delivery; its decreasing accountability to citizens and communities; ANC factions that want In general, food security is defined as having the land of many farmers to be transferred to ANC reliable access to a sufficient quantity of affordable, cadres; and the fact that many farmers support nutritious food. According to Stats SA, the typical political opposition parties. South African household spends more than 70% of its food budget on four main food groups: Meat Farming communities, like many urban (25%), bread and cereals (26%), milk, cheese and neighbourhoods, have had to accept that their eggs (9%), and vegetables (10%). tax money is spent by the government, but that as taxpayers and citizens they remain without good An analysis of the combined net trade (net export police protection. The Austrian newspaper Der tons less the net import tons) of the main items in Standard reported on 28 November 2017 that up each of the four groups provides a good indication to 30% of the victims may be black, but the ANC of the country’s food self-sufficiency status. The still did not give attention to these killings: trend is downward over time. South Africa is currently not self-sufficient in terms of the main food items consumed since the mid-1990s. A Many politicians of the ruling African 2014 nationally representative survey revealed National Congress find it difficult that there were 7 million individuals who reported experiencing feeling hungry.63 to name the acts of violence and to condemn them as such. And not only on South Africa’s population has grown by more than 20% since 1994 to an estimated 57 million people. the edges of the former black liberation It is set to grow much further still in coming years movement does one find those who try and decades.64 Food security and affordable food produced by the agricultural sector are already with barely concealed agreement try under threat. The ANC government’s refusal to to create an atmosphere where such ensure proper rural protection or to properly violence is accepted.65 assist farming communities in strengthening their security will only reinforce the risk of food The Africanist, Professor Patrick Chabal, noted in insecurity in South Africa. some cases elsewhere in Africa that rulers have

61. https://www.farmonline.com.au/story/5247948/south-african-farmland-grab-could-ruin-economic-stability/. 62. This section is based on http://www.grainsa.co.za/a-look-at-the-contribution-of-the-agricultural-sector-to-the-south- african-economy. 63. https://www.health24.com/Diet-and-nutrition/Food-security/Food-insecurity-is-a-reality-for-millions-of-South- Africans-living-in-informal-settlements-20151019; https://africacheck.org/reports/are-there-13-14-or-15-million- hungry-people-in-south-africa/. 64. https://www.populationpyramid.net/south-africa/2050/. 65. https://www.derstandard.de/story/2000068573136/debatte-ueber-morde-an-weissen-reisst-suedafrikas-wunden- auf.

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allowed violent crime to restructure the political In the case of farm murders, as well as in the case environment in its favour.66 Local “big men” have of urban violent crime and xenophobic killings, often played a role in this regard, sometimes the life stories of the victims, taxpayers and with tacit support from national leaders. Gareth citizens often get lost in the bigger maelstrom of Newham assessed the police in South Africa: politics and predation.68 Few foreign governments and NGOs also show a significant interest in their The system for a professional ethos infringed civil rights. has collapsed and lower level officials are excluded because they aren’t politically-aligned. If people are not seen as a part of the ruling factions and they are killed, there is little chance of an investigation.67

66. Patrick Chabal and Jean-Pascal Daloz, Africa works: Disorder as political instrument (International African Institute, London, 1999). 67. http://allafrica.com/stories/201310220779.html?page=3. 68. Carla van der Spuy, Farm killings: Victims tell their own stories (Bargain Books, Cape Town, 2014) is an introduction to the life stories of the first category of victims. To date, newspaper reports are the best sources of information on victims in the other two categories, but more comprehensive studies are necessary. See also Ernst Roets,Kill the Boer (Kraal Publishers, Pretoria, 2017).

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PART III A shrinking social contract and a multipolar field of authority

Partisan privileging these vast differences in histories and wealth are compressed in a single political order of an estimated 57 million people. At present, the economy of South Africa has diverse socio-economic formations and wealth inequalities Among them, an estimated 6 million people of all resembling France and the Francophone region population groups pay 99% of all personal income in Africa combined, or the region of Mexico, the tax. Many, if not most of them, support opposition Caribbean islands, the United States, and French parties.69 The social welfare system they help to and Anglophone Canada combined. However, fund, supports an estimated 17 million people.

69. Fanie Joubert and Jannie Rossouw, “Lewenstandaard: ʼn ekonomiese perspektief op lewenstandaard in Suid-Afrika”, Tydskrif vir Geesteswetenskappe, 53(1), Maart 2013, pp 89-103 (on pp 96-97). For lower estimates of the actual number of taxpayers, see Paul Joubert, “How many taxpayers are there”, Politicsweb, 30 March 2012 and Piet le Roux, “Taxpayers are getting fed up”,Politicsweb , 19 November 2013. 35

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The growing informal economy also constitutes a order, will continue in the current hybrid regime. part of the arena of political competition. One of the results, admitted by Ramaphosa himself in January 2019, is that “things like corruption The considerable value destruction of the ANC’s become a way of life”.72 economic policies and corruption under Zuma and the struggling economy, covered in later chapters, Racial nationalism and the ANC have intensified resource struggles and intra-ANC factionalism. In this context, various forms of both Historically, the ANC experienced tensions between peaceful and more vicious identity, urban, rural, professed non-racialism and racial nationalist regional and class politics have emerged. convictions among its leaders and members.73 During its pre-1994 struggle, its international In the case of South Africa, the public resources supporters often referred to its non-racial ideals structure rests on a complex set of relationships and credentials. However, after 1994, the ANC between the ANC-controlled state, as well as also retained the racial classification system of the emerging black elites in the ANC establishment population used during the apartheid system to and large private sector corporations. This set of impose a new racial order. Ineke van Kessel states: relationships supports the ANC’s use of a number 70 of policy levers. An exclusive brand of African nationalism, also labelled “nativism”, seems set to become the The policy of Black Economic Empowerment new hegemonic discourse … Black nationalism (BEE), under Zuma also reconfigured as Broad- may indeed provide the glue in securing the based Black Economic Empowerment (BBBEE), is loyalty of the ANC’s main constituency, but often represented as if it constitutes an advance in the process another cherished principle of for all members of one racial group. However, it the liberation struggle, – non-racialism – is has become a partisan political programme. In its increasingly under pressure … The demise of execution in the hybrid regime, it is closely linked the rainbow ideology that guided the UDF is to the political friends and relatives of one political much regretted by coloured, white, and Indian organization among others of the racial group, former activists, but is hardly problematized by namely the ANC. BEE also provides a disincentive my African interviewees.74 to members of the elite to defect and form an electoral alternative in the hybrid regime. “There is an increasing fervour for racial nationalism in the ANC’s policies”, the political scientist Nicola According to Moeletsi Mbeki, a prominent de Jager notes.75 The racial identity politics serves economist and the brother of former President as a potential unifying discourse among South Thabo Mbeki, BEE has not benefited black business Africa’s nine major black ethnic groups. It also people, but in fact has inflicted them a fatal blow. serves as a potential unifying discourse between He states that those who have benefited are a an emerging middle class and millions of poor small group of unproductive black capitalists citizens. This form of racial identity politics often with enormous political influence. Other black tends to racialize and regionalize African identity: 71 businesspeople have almost had no chance. This it marginalizes or even denies the African identities process, which started in the previous political and contributions of Western and Asian citizens

70. Roger Tangri and Roger Southall, “The politics of Black Economic Empowerment in South Africa”,Journal of Southern African Studies, 34(3), 2008, pp 699-716 (on p 710) and http://mg.co.za/article/2013-10-25-00-gold-fields-link-to- duduzile-zuma. 71. http://www.faz.net/aktuell/wirtschaftspolitik/suedafrika-schwarze-buerger-werden-gezielt-bevorzugt-12911281. html. 72. https://www.nytimes.com/2019/01/23/world/africa/south-africa-corruption.html. 73. Stephen Ellis, External mission: The ANC in exile, 1960-1990 (Hurst, London, 2012), pp 214-219. 74. Ineke van Kessel, “The changing meaning of change: The legacy of the United Democratic Front in South Africa”, paper delivered at the Fourth European Conference in African Studies, Nordic Africa Institute, Uppsala, Sweden, 15- 18 June 2011, p 6. 75. http://mg.co.za/article/2015-11-03-sa-is-in-danger-of-becoming-a-radicalised-society-again. 36

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in South Africa. Implicitly, it also marginalizes or that special measures should not take the shape denies the African identities of Berber and Arab of reverse racism.77 North Africans. Ethnic politics in the ANC John Kane Berman of the IRR has commented that the victims of the new racially-discriminatory Zuma’s presidency has clearly reinforced ethnic legislation include politics in the ANC. In the case of South Africa, no … members of minority groups leveraged out single ethnic group dominates numerically in the of jobs because they exceed the relevant racial population of more than 57 million. The broader quota, or denied appointment or promotion on population has at least eleven major identity 78 racial grounds. Increasing numbers of these are groups, all of whom are numerical minorities. “born frees” with no experience of the apartheid All of these groups have distinctive cultures and era. Other victims are members of the coloured languages, sometimes core areas of residence and and Indian minorities, who were also on the concentration, and often histories of struggles receiving end of apartheid discrimination. against domination by other groups. Each group’s However, the victims also include people, members have a spectrum of iterated and most of them black, heavily dependent on the negotiated identities and socio-economic class services of state agencies that don’t function positions. Many of them also draw from cultural properly because many of their appointees repertoires of fervent individualism, ruses and have been put there for reasons of race or social mobility, based on the specific dynamics political allegiance ... In the end the victims of of their group and locality.79 Compared to some the ANC’s racial policies are more numerous other identities available to citizens, the South than the beneficiaries.76 African identity itself has often been a thin, fluid In August 2016, the Solidarity Trade Union, after and contested national identity for purposes of widely consulting with civil society actors over time, political mobilization. made a presentation regarding the government’s policy of race quotas to the United Nations (UN) For many years before the ANC came to power Committee on the Elimination of All Forms of in 1994, Nelson Mandela, an ethnic Xhosa, was Racial Discrimination (CERD). Marc Bossuyt, one the leader of the ANC. The ANC always stressed of the committee members and a former judge its “non-tribalism”. However, Mbeki expanded the at the Belgian Constitutional Court, stated on 10 number of Xhosas in his cabinet during his tenure 80 August 2016 that the government’s affirmative as president. During this time, most members of action policy is rigid and its implementation in the the ANC executive were Xhosas and Zulus speaking private sector, the economy and sport is absurd. Nguni languages. Zuma was the highest-ranking In response to the South African government’s Zulu in the ANC. In 2006, Archbishop Emeritus representative, he stated that the use of race Desmond Tutu warned about a potential “Nguni- 81 comes down to old apartheid and is not in line ocracy” in the ANC. with the Convention on Human Rights. He stated

76. John Kane Berman, “Race and racism”, Moneyweb, 25 January 2016. 77. http://www.politicsweb.co.za/news-and-analysis/solidarity-lodges-complaint-over-sas-race-quotas-w; https:// solidariteit.co.za/en/sparks-fly-united-nations-solidarity/. 78. See Census 2011 at http://www.statssa.gov.za. 79. Jean-Francois Bayart, “The ‘social capital’ of the felonious state – or the ruses of political intelligence”,in Jean- Francois Bayart, Stephen Ellis and Beatrice Hibou, The criminalization of the state in Africa (James Currey, Oxford, 1999), pp 34-42. 80. http://www.businesslive.co.za/bd/opinion/2016-10-19-ethnic-nationalism-zumas-style-of/. 81. Yonatan Fessha, Ethnic diversity and federalism: Constitution-making in South Africa and Ethiopia (Ashgate: Burlington, 2010), p 132; Danielle Resnick, Urban poverty and party populism in African democracies (Cambridge University Press, Cambridge, 2014), pp 200-209. 37

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Zulus constitute the largest minority, at about New prominent sources of symbolic 22% of the population, with their core historical areas and kingdoms in the eastern KwaZulu-Natal legitimation province. Zuma is an ethnic Zulu who also upholds some Zulu cultural traditions. As a result of Zuma’s Recourse to both Christian and indigenous African skills as a mobilizer since 1994, Zulus have come religions, which also enjoy support among urban to form the strongest component (almost 25%) of constituencies and leaders, have been used as the ANC’s increased membership.82 additional sources to legitimize the ANC’s hold on power. On 5 May 2008, Zuma declared to an ANC Anthony Butler of the University of Cape Town (UCT) rally in Khayelitsha: indicated the “skewed composition of the Cabinet, the KwaZulu-Natal-dominated ANC parliamentary God expects us to rule this country because we list, the growing nonrepresentativity of important are the only organisation which was blessed by directors-general and their deputies, and the pastors when it was formed. It is even blessed composition of parastatal boards and managers” in Heaven. That is why we will rule until Jesus during Zuma’s presidency. These appointments, comes back. We should not allow anyone to he argued, indicate “a big shift in the control of govern our city [Cape Town] when we are ruling resources and power towards people of amaZulu the country.86 descent”. “When a minister comes from a certain region, so will the officials in that department,” He made similar statements in 2004, 2006, 2009, former President Thabo Mbeki said in 2014.83 2012, 2014 and 2016.87

Ramaphosa, a Venda with a more personalist Previously, he had said that “only those with ANC power base, has already reached out to the Zulu membership will go to heaven”.88 In May 2011 he king84. He will try and prevent a major fissure told voters before municipal elections that those between the ANC and its Zulu constituencies, who turn their backs on the ANC will face the also since they are Zuma’s main power base and wrath of the ancestors, a force considered by many no one from KwaZulu Natal is on the new NEC. citizens to be powerful and actively intervening in Vast sums of tenderpreneurship winnings are at daily life: stake in state procurement contracts to the value of more than $45 billion annually.85 Given the strong divisions in the ANC, factional politics and I’ve been telling people that if you once balances of power dominate Ramaphosa’s current belonged to the ANC and you leave, the selection of people for important positions. ancestors of the ANC will turn their However, regional, ethnic and neopatrimonial dynamics and support networks form a key part backs on you and you’ll have continuous of ANC factional politics. bad luck.89

82. Also see William Gumede, “Zuma and Zulu nationalism” (2012) at http://www.pambazuka.net/en/category/ features/85841/print. 83. http://www.businesslive.co.za/bd/opinion/2016-10-19-ethnic-nationalism-zumas-style-of/. 84. https://www.enca.com/south-africa/watch-ramaphosa-dances-with-king-zwelithini. 85. https://monthlyreview.org/2019/01/01/south-africa-suffers-capitalist-crisis-deja-vu/. 86. http://www.iol.co.za/news/politics/anc-to-rule-until-jesus-comes-back-1.398843?ot=inmsa.ArticlePrint PageLayout. ot. 87. http://www.politicsweb.co.za/politicsweb/view/politicsweb/ en/page71639?oid=326899&sn=Detail&pid=71639; http://www.news24.com/elections/news/anc-will-rule-until-jesus-comes-zuma-says-again-20160705. 88. http://www.timeslive.co.za/sundaytimes/article895148.ece/God-is-on-the-ANCs-side-Zuma-tells-crowd. 89. http://mg.co.za/article/2011-05-14-zuma-vote-anc-or-face-ancestral-wrath. 38

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In September 2017, Zuma blamed witchcraft Coalitions with traditional for the ANC’s failure to beat the DA at polls in the Western Cape. “I don’t know‚ [maybe] it’s authorities and local strongmen because of witchcraft; witches practise their craft in different ways‚” Zuma said. He added that The effective power of the state bureaucracy nowadays witches even used electricity. “In the has decreased under the ANC government. The last elections I was satisfied that we are taking the population has expanded by more than 20%, Western Cape‚ I even said so. What went wrong? I while the hybrid regime, cadre deployment too can’t tell you. It’s witchcraft – you never know. and selective patronage have “eaten the state” Maybe even ghosts are voting.”90 and its capabilities. In addition, labour union allies have become weaker. Up to a third of Adam Ashforth, Stephen Ellis and Gerrie ter Haar South Africa’s population lives in areas where all identify a potential legitimacy gap if many traditional authorities are influential. The political citizens who adhere to Christian or indigenous settlements of 25 years ago are now superseded African religious views do not see the state by a conscious ANC effort to create new deals acknowledging and protecting them against the and coalitions that incorporate potential allies like profound threat posed by evil spirits.91 traditional chiefs and urban strongmen.

Zuma has been able to have recourse to this There are several traditional kings and more than repertoire and that of the NDR to align with eight hundred senior traditional leaders and more different constituencies. In this way, he could than five thousand chiefs in the country who get also gain access to some of the moral authority salaries from the state.94 In the case of traditional of traditional authorities, increase the political authorities, the ANC and especially former order’s responsiveness to such constituencies, President Zuma potentially benefited in several and strengthen the symbolic legitimacy of the ways. Zuma gained access to some of the moral hybrid regime.92 authority of these leaders, while also extending the power of the ANC over them where possible. Ramaphosa took care to align with this discourse He increased the political order’s responsiveness of legitimation in January 2018 during an ANC to rural constituencies in order to offset the loss birthday rally. He stated that he had appealed of support in some urban and middle-class black to higher powers in the previous week during a constituencies. He also strengthened the symbolic “revolutionary pilgrimage” to the graves of former legitimacy of the hybrid regime in areas where the ANC presidents. He said that they had been state’s actual penetration, and especially its actual “shaking the bones of our forebears so their spirits service delivery may be weak.95 and their flesh can rejuvenate the ANC to what it was”.93 Other discourses are also present, but the It is noticeable that after his election as ANC search for an African modernity and a selective leader, Ramaphosa specifically visited the Zulu de-Westernization now dominates the symbolic king, Goodwill Zwelithini, and Xhosa traditional domain.

90. http://www.heraldlive.co.za/politics/2017/09/08/maybe-witchcraft-made-us-lose-poll-western-cape-says-zuma/. 91. Stephen Ellis and Gerrie ter Haar, Worlds of power: Religious thought and political practice in Africa (Oxford University Press, New York, 2004), pp 153-154; Adam Ashforth, Witchcraft, violence, and democracy in South Africa (University of Chicago Press, Chicago, 2005); also see http://www.h-net.org/reviews/showrev.php?id=10591. 92. http://www.timeslive.co.za/thetimes/2014/01/09/jz-drops-poll-bomb1. 93. https://www.iol.co.za/saturday-star/going-back-to-our-roots-12747604; https://www.dailymaverick.co.za/ article/2018-01-12-ancs-106th-at-the-last-supper-before-the-big-speech-ramaphosa-preaches-unity-in-diversity/#. WnWV_KjibIU. 94. Zuma attended the recent coronation of the new Xhosa king. http://news.yahoo.com/lion-skins-dancing-xhosa-king- coronation-africa-181027012.html; https://businesstech.co.za/news/government/218081/how-much-south-africas- kings-and-queens-will-be-paid-in-2018/. 95. http://www.timeslive.co.za/thetimes/2014/01/09/jz-drops-poll-bomb1. 39

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leaders, among others.96 Wilmien Wicomb, an game of exclusionary violence” could easily attorney in the Constitutional Unit of the Legal expand from “outsiders within” to longtime Resources Centre, commented: insiders, such as Indian South Africans, coloureds and whites. Retribalisation has been The effect of the current legislative framework is relatively successfully contained by the ANC that traditional leaders have almost unfettered and its ally, the South African Communist Party, power to make, enforce and adjudicate law in public discourse, but it nevertheless simmers within those communities ... vast areas of the under the surface.99 homeland territories turned out to be rich with resources … The stakes are very high.97 The editorial of the Mail and Guardian on 17 April 2015 also noted: As the capabilities of the central government recedes, the importance of local strongmen in the It would not take much for the groundswell alliances of rulers will increase. At present, the against foreigners to be translated into active realignment with traditional authorities is violence against the Indian community, especially noticeable. Currently or in future, these particularly in KwaZulu-Natal, where there is a alignments may also involve long and dishonourable tradition of sectarian hatred. There is now an attempt to paint South ... gang leaders in townships and squatter Africans of Indian origin as “co-conspirators”, settlements, vigilante-type organisations, by suggesting that foreigners are using their ethnically-based protection rackets, millenarian warehouses or that “they are working together religious movements, transnational networks against us, the Zulu majority”.100 of extended family relations, organised crime or new forms of tribalism … They have the In August 2017, KwaZulu-Natal economic capacity to exert violence on a large scale development member of the executive council against outsiders and the capacity to control (MEC), Sihle Zikalala sent a proposal to the National violence within their respective strongholds.98 Treasury to exclude Asians and brown people from the advantages of BEE. Zikalala’s proposal A shrinking social contract and purportedly aims to “benefit black Africans”.101 On 27 April 2015, the political economist Ismail indigenous cultural groups Lagardien wrote on the ANC’s return to ethnic and racial politics: The current political order consists of several numerical minority groups. After the xenophobic In consultations over the past year or so, and attacks of 2015, sociologists Heribert Adam and visits to the province, I have found that there Kogila Moodley wrote: has been a significant anti-Indian sentiment, on the back of calls for the largest indigenous Sensitive scholars such as Francis Nyamnjoh community, the Zulus, to take greater control of have already hinted that the “bizarre nativity KwaZulu-Natal. In the provincial bureaucracy,

96. https://www.enca.com/south-africa/watch-ramaphosa-dances-with-king-zwelithini; https://www.timeslive.co.za/ politics/2018-01-07-ancs-top-leadership-pay-homage-to-zulu-monarch/. 97. http://www.dailymaverick.co.za/article/2016-01-13-a-royal-conundrum-king-dalindyebo-and-the-traditional- leaders-hot-potato/#.WDl-ZoWcHui. Also see http://www.news24.com/SouthAfrica/News/frustrated-south-africans- lashing-out-at-each-other-irr-20160105. 98. Volker Boege, Anne Brown, Kevin Clements and Anna Nolan, “On hybrid political orders and emerging states”, Berghof Handbook Dialogue, 8, 2008. 99. http://mg.co.za/article/2015-05-06-violence-sets-sa-xenophobia-apart. 100. https://mg.co.za/article/2015-04-16-editorial-our-hate-grows-shame-on-us-all. 101. https://www.businesslive.co.za/bd/national/2017-10-16-mandla-mandela-condemns-call-to-exclude-indians-and- coloureds-from-bee/. 40

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“coloured” people are stripped of authority, Several Afrikaner-led organizations saw Zuma’s and increasingly find themselves marginalised; remarks on history as a delegitimization of the if not formally and physically, they are ignored position of the Afrikaners, also because of his and their work is shoved aside.102 silence about their contributions. Their ancestors, as in the case of America, came from European In December 2018, , countries in the seventeenth century, settled in the leader of the predominantly Zulu Inkatha a region with several competing political orders, Freedom Party (IFP), felt compelled to condemn created Western republics, and have come to anti-Indian sentiment and expressed concerns regard themselves as a people rooted in Africa.105 about politicians who paint Indians as settlers and “as racist and less deserving of the fruits of Many of them and other whites will be forced to democracy”.103 Professor Brij Maharaj from the leave the country under the current government’s University of KwaZulu Natal (UKZN) wrote in 2018, policies, former President F.W. de Klerk said on 26 referring to several examples: August 2016:

It is disturbing that racist outbursts are beginning to permeate government We have to face the unpalatable fact institutions. A good example would be the case that our present government has of the Durban Metro. Over the years, it would adopted policies that are consciously appear that an incipient institutional bias has been emerging within the higher echelons of directed toward harming the core the metro that stereotypes and targets South 104 interests of a section of the South Africans of Indian descent. African population according to their New forms of political racism? race.106 On 23 January 2019, De Klerk stated that South As new political trends and actors emerged in black Africa was again becoming “a society in which the politics, Zuma eventually turned to exclusionary prospects of individuals are once again increasingly identity politics to maintain and build his support determined by the colour of their skin rather than base. “You must remember that a man called Jan the content of their character”. van Riebeeck arrived here on 6 April 1652, and that was the start of the trouble in this country,” Our government has virtually abandoned he told guests at a fundraising dinner in February the great tradition of promoting racial 2015. “What followed were numerous struggles reconciliation that was exemplified by Nelson and wars and deaths and the seizure of land Mandela. Instead it now consistently pumps and the deprivation of the indigenous peoples’ out negative stereotypes of specifically white political and economic power.” Van Riebeeck’s South Africans, whom it labels with the original arrival “disrupted South Africa’s social cohesion, sin, whom in some statements it evidently does repressed people and caused wars”, he said. Zuma not regard as a part of “our people”, whom it later claimed that the new settlers had stolen the says are not the rightful owners of the land to land of other resident groups. which they hold legal title, whom it blames for

102. http://www.dailymaverick.co.za/opinionista/2015-04-27-the-re-racialising-and-tribalisation-of-politics-where-will- we-end-up/#.VXmAcmPALmQ. 103. https://www.iol.co.za/sunday-tribune/news/mangosuthu-buthelezi-gives-land-expropriation-warning-18438760. Also see https://www.dailymaverick.co.za/opinionista/2015-04-07-a-volatile-case-of-afrikan-vs.-indian-in-kwazulu- natal/#.VSe7w5UcTIW. 104. https://www.dailymaverick.co.za/opinionista/2018-09-10-corrupt-cs-anti-indian-prejudice-in-the-durban-metro/. 105. See Hermann Giliomee, The Afrikaners: Biography of a people (Tafelberg, Cape Town, 2003). 106. https://www.news24.com/SouthAfrica/News/many-whites-will-be-forced-to-leave-the-country-fw-de- klerk-20160826. 41

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all the continuing problems of the country and In August 2018, Malema’s allegation that “Jews” to whom it refers to as colonialists, as aliens are training right-wing snipers to kill black people, who do not really belong in South Africa. was dismissed by the South African Jewish Board of Deputies. In 2017 and 2018, he also made anti- Asian remarks directed towards former Finance It is extremely dangerous when Minister .111 Earlier, he had stated governments and political leaders that the party would topple the DA opposition in multicultural societies begin mayor in Port Elizabeth based on his race. “They will be touched – don’t worry,” Mr Malema told a to propagate such stereotypes, rally. “We are starting with this whiteness – we are particularly when such propagators cutting the throat of whiteness.”112 At a rally on 8 December 2018, Andile Mngxitana, the leader often believe them with incandescent of the Black First Land First (BLF) movement told fervour.107 the audience that they will kill white people. He stated that “we will kill their women, we will kill There was “a disturbing escalation of aggressive their children, we will kill their dogs, we will kill racial rhetoric punctuated by ugly incidents”, De their cats, we kill anything that comes for us”.113 Klerk said, adding that there “is no balance in the manner in which racist remarks and incidents are ANC breaking the negotiated judged. Foolish and unacceptable racist remarks … not intended for public dissemination are treated settlement of 1994 far more harshly than incendiary remarks made in public by political leaders openly calling for racial The negotiated settlement of the 1990s in South violence.” According to him, it was imperative to Africa intended to stop decade-long struggles end South Africa’s slide into “new forms or racism”. between groups trying to avoid domination by each other. It also tried to reflect the sentiment De Klerk spoke after the ANC acted against anti- expressed by Nelson Mandela, namely that black comments made by private individuals on he opposed both white domination and social media,108 while it did not pursue comments black domination in the diverse country. The of anti-white racism extolled by Julius Malema, Constitution of 1996 that emerged from the leader of the EFF. The EFF is a radical socialist ANC settlement, recognized and tried to protect the breakaway party in Parliament whose policies on rights and equality of all citizens and all cultural expropriation without compensation and free groups. It also provided for fair redistributionist education have been adopted by the ANC. In June measures, but with protected property rights. 2018, Malema stated in an interview: “I’m saying to you, we’ve not called for the killing of white One of the key policy decisions at the ANC people ... at least, for now. I can’t guarantee the conference in December 2017 was on expropriation future”.109 In July 2018, he supported calls for anti- of land without compensation. The policy was white violence made by Louis Farrakhan.110 previously advocated mainly by the radical

107. https://www.dailymaverick.co.za/article/2019-01-24-fw-de-klerk-claiming-space-in-sas-democratic-history-while- criticising-new-forms-of-racism/. 108. https://city-press.news24.com/News/racism-penny-sparrow-fined-r150k-community-service-for- theunissen-20160610. 109. https://www.youtube.com/watch?v=FrrlLQFbVOs. 110. https://www.thesouthafrican.com/violence-against-whites-julius-malema-tweets-in-agreement/. 111. https://citizen.co.za/news/south-africa/1999850/malema-faces-backlash-for-anti-semitic-rant/; https:// monthlyreview.org/2019/01/01/south-africa-suffers-capitalist-crisis-deja-vu/. 112. https://www.news24.com/SouthAfrica/News/we-are-cutting-the-throat-of-whiteness-malema-on-plans-to-remove- trollip-20180304. 113. https://www.iol.co.za/the-star/news/human-rights-commission-probes-mngxitamas-anti-white-rant-18479839. 42

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socialist EFF.114 The ANC announced in February De Klerk has stated that it has been clear from 2018 that it planned to expropriate mostly white- 2012 onwards that it has never been the ANC’s owned farms without compensation. President intention to maintain all the rights contained in Ramaphosa announced on 31 July 2018 that the the Constitution, including the protection of all ANC would even try to change the Constitution to cultural groups and languages. He went on to say: support such expropriation without compensation. On 22 August 2018, Ramaphosa confirmed that I have come to the conclusion that the future of urban land would also be covered by the ANC’s the Afrikaner people and all minorities is once expropriation policies.115 again in our own hands – just as it was so many times in our turbulent past.118 Former President Thabo Mbeki’s foundation stated in a leaked internal paper that the ANC has The breaking of the negotiated settlement by the abandoned its historical values on non-racialism ANC may in time again fuel radicalization among through its framing of the land-reform debate as members of the newly-marginalized citizens and one of black versus white.116 Political economist communities, and also new conflicts. A statement Moeletsi Mbeki also said in this regard: in July 2018 by Goodwill Zwelithini, the king of the Zulus, which constitute about 22% of the diverse This is not about land. It is about the loss of votes population of South Africa, encapsulated this risk. by the ANC. And the ANC and its little son, the EFF, they think they can bring back the voters According to the news reports, he stated that the who are abandoning the ANC by attacking the ANC government “should not even think about white population … Its solution is to attack the taking away land under the Ingonyama Trust or white population. Malema is leading the ANC’s else face a war with the Zulu nation ...” It was a election campaign by attacking the white rallying call by the king who continuously warned population.117 government not to provoke the Zulu nation. He called on all his subjects to think deeply about how In the Afrikaans media, F.W. de Klerk referred to this land should be protected and admonished the negotiations of 1994 in which Ramaphosa them always to remember that wherever they participated and that resulted in a negotiated are, they are Zulu first, irrespective of whatever transfer of power to the ANC to achieve inter- profession they may be in. He again threatened group peace after decades of guerrilla war, as that KwaZulu-Natal is prepared to become its own follows: state if government were to continue ignoring their opinion.119 It is now clear with hindsight that the ANC negotiators deliberately misled not A new social contract excluding some citizens only Afrikaners – but also all non- ANC parties – with regards to their When President Ramaphosa announced the ANC’s intentions over the medium and long policy of expropriation without compensation in the SONA of 2018, and amending the Constitution term. based on the negotiated settlement of 1994, he referred to giving the land back to “our people”.

114. Susan Booysen, Dominance and decline: The ANC in the time of Zuma (Wits University Press, Johannesburg, 2015), p 229. 115. https://www.enca.com/news/urban-land-will-be-expropriated-ramaphosa. 116. https://www.businesslive.co.za/bd/national/2018-09-25-thabo-mbeki-decries-divisive-anc-land-approach/. 117. https://www.huffingtonpost.co.za/2018/05/15/experts-how-land-expropriation-could-go-very-very- wrong_a_23435358/. 118. https://www.netwerk24.com/Stemme/Aktueel/fw-hof-versaak-minderhede-20180121. 119. https://ewn.co.za/2018/07/05/leave-our-land-or-face-a-war-with-the-zulu-nation.

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This statement was interpreted as excluding by the government, while it marginalizes and citizens from non-black minorities. Mosiuoa delegitimizes the position of others. At least as Lekota, a former ANC minister of defence and pervasively, inside the ANC and the bureaucracy leader of the political party, Congress of the stratification and privileging based on political People (COPE), asked in Parliament: allegiance to factions or a history in the exile movement have become a reality too.122 It is Are you going to take the properties of the possible that the new symbolic domain could great grandchildren of the Indian indentured eventually also stratify black ethnic groups and labourers who came here? Are you going to result in new claims-making and contestation.123 take the properties of the French Hugenots and German refugees who came here, running International business and NGOs would ignore the away from religious wars in Europe? Is it going stratified, ethnicized and racialized understandings to be the property of great-grandchildren of of citizenship, property rights and entitlements slaves who came from the Malay peninsula and at their peril. Linked to the hybrid regime, they Philippines islands? reflect a new symbolic and political domain that is far removed from that expressed in the formal In answer to this, the EFF benches and some ANC liberal democratic Constitution of South Africa.124 MPs shouted: “Yes!” EFF leader Julius Malema rose on a point of order and added: “The answer Middle-class emigration and brain is yes.”120 drain Under Zuma and Ramaphosa, in the context of factional struggles, politics include new and Middle-class dissatisfaction remains high with selective claims for belonging and entitlement the government’s lack of proper protection and versus exclusion under the rubric of “autochthony”. meagre service delivery amid pervasive corruption Given the history and pattern of socio-economic and mismanagement. Robert Vivian, professor of formations in South Africa, they increased the Finance and Insurance at the University of the risk of a “sons of the soil” contestation between Witwatersrand, described the hidden tax imposed citizens, similar to such politics in some parts of on tax-payers in exchange for few good services Africa and Asia.121 as follows:

Asians, Afrikaners and South Africa’s Jewish South Africa has a strange situation. Most community have all been targeted by hostile middle-class taxpayers pay high taxes, rhetoric and actions from leaders and officials but receive virtually no benefit. They end from ANC-aligned and ANC breakaway groups. up attempting to purchase the very same The social contract between the government and services that should have been provided the population is shrinking, and the identified out of their taxes. Examples include private population is also becoming stratified: citizens security services, education, and healthcare. from certain groups are now clearly privileged It is on some of these services that the hidden

120. https://www.news24.com/SouthAfrica/News/whose-land-will-you-take-who-is-not-our-people-lekota-20180219. 121. See Jacques Bertrand and André Laliberté (eds), Multination States in Asia: Accommodation or Resistance (Cambridge University Press, Cambridge, 2010); Isabelle Cóté and Matthew I. Mitchell, “Elections and ‘sons of the soil’ conflict dynamics in Africa and Asia”,Democratization , April 2015; http://criticalasianstudies.org/issues/vol41/ no4/we-are-sons-of-this-soil.html. 122. http://www.elsevier.nl/Buitenland/achtergrond/2015/5/Anti-blanke-en-anti-Joodse-sentimenten-onder-zwarte- studenten-1762677W/; http://www.juedische-allgemeine.de/article/view/id/21806; http://www.haaretz.com/ jewish-world/jewish-world-news/1.646235; http://www.jpost.com/Opinion/Standing-against-anti-Semitism-in- South-Africa-380583. 123. http://www.rdm.co.za/politics/2015/04/24/ethnic-cleansing-sure-to-follow-xenophobia. 124. http://www.gov.za/documents/constitution/constitution-republic-south-africa-1996-1. 44

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Masakhane tax appears … Those who do not every professional immigrating to South Africa, pay for services are funded by the group that eight professionals are emigrating.129 does pay. One group of private individuals is forced to subsidise another. The Masakhane An increase in self-help initiatives tax falls outside the control and oversight of Parliament. It is taxation without consent, and authority migration appropriation or oversight. As such, it is manifestly unconstitutional.125 Emigration and migration inside South Africa to regions not controlled by the ANC, has become In some cases, the economic and political turmoil a significant response by dissatisfied citizens, has fueled emigration by skilled professionals from taxpayers and members of communities.130 all groups. According to Pew Research, almost Another response has included a limited but 900 000 South Africans, many of them well-skilled, robust evolution of capacity within communities were living outside South Africa in 2017.126 Over the and subsystems of the state. It occurred in past three years, there has been a consistent year- response to ANC misgovernance, weak protection on-year increase in the number of professionals of citizens, weak responsiveness to taxpayers, and who would consider leaving the country, according the shrinking social contract. Sometimes these to Advaita Naidoo, chief operations officer at capacities are linked to organizations located in executive search firm Jack Hammer. In 2018, specific local governments, resulting also in some 86% of top South African executives polled in the authority migration to such actors. Cities like Cape latest Jack Hammer Executive Report indicated Town, for example, exhibit an own foreign policy that they would consider an offer to move abroad and governance.131 seriously. The results show that the percentage of executives willing to relocate abroad has At times these capacities are linked to significantly jumped from 47% in 2016 and 78% in organizations located in communities. Also in 2017. Of those interested in relocating, 49% were this case, authority migration occurs. Community black respondents.127 courts and policing occur in several richer and poorer pro-ANC townships, also in the Western The trend of senior professionals from all Cape.132 Among Cape Muslims, own institutions backgrounds willing to consider a future outside and even neighbourhood watches have played of the country, is likely to persist in coming years. an important role since the 1990s. Traditional According to property economist Edwin Rode, institutions remain powerful in much of rural South Africa “is heading for an extended period South Africa and even beyond. of social upheaval. Apart from the brain drain, the country is running out of entrepreneurs who Some sections among the Afrikaners have already can create jobs”.128 The Enterprise Observatory of responded to the increased pressure of non- South Africa (EOSA) also recently noted that for performing state institutions or targeting by the

125. “The hidden, unconstitutional tax”,Business Day, 25 February 2016. 126. https://businesstech.co.za/news/lifestyle/293908/heres-how-many-south-africans-are-leaving-for-new-zealand- australia-and-the-uk/. 127. https://www.fin24.com/Economy/brain-drain-86-of-top-sa-executives-would-move-abroad-survey-20181228. 128. https://www.fin24.com/Economy/sa-macro-economic-outlook-bleak-amid-brain-drain-land-reform- worries-20180911. 129. https://businesstech.co.za/news/business/293526/top-talent-in-south-africa-is-now-shrinking-expert/. 130. https://city-press.news24.com/News/sharp-rise-in-number-of-south-africans-leaving-the-country-20190117; https:// businesstech.co.za/news/lifestyle/293908/heres-how-many-south-africans-are-leaving-for-new-zealand-australia- and-the-uk/. 131. http://www.bdlive.co.za/opinion/columnists/2015/06/10/cape-town-a-different-universe. 132. http://www.theglobeandmail.com/news/world/vigilante-killings-on-the-field-of-death-in-south-african-township/ article17052460/; http://www.dailymail.co.uk/news/article-3054070/Murderers-rounded-burned-alive-vigilante- mob-South-Africa-beaten-man-death-streets.html; http://news.sky.com/story/1163607/south-africa-gang- members-lynched-by-vigilantes. 45

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hybrid regime. The predominantly Afrikaner- Afrikaans language, culture, and institutions. led Solidarity Movement has mobilized almost For Afrikaners, it constitutes a breach of the 500 000 members, especially in northern areas of 1994 settlement, but for the ruling power elite, South Africa. As a movement, it includes eighteen it is the implementation of that agreement … organizations initiating self-help initiatives. The For Afrikaners, the only way out of this cul-de- movement positions itself as a centre-right sac of radical transformation is to establish Christian democratic organization favouring forms extensive cultural self-management through of community federalism for the eleven cultural strong community institutions.136 groups in South Africa.133 In response to the ANC’s land expropriation The movement’s member organizations include policies, King Goodwill Zwelithini also called on one of the fastest-growing civil rights groups in Zulus to defend their culture and tribal lands.137 South Africa – AfriForum, founded in 2006. It had Similarly, Khoisan communities are pursuing reached a membership of more than 215 000 ways of increasing their authority over their own by the end of 2018. It conducts court cases on cultural affairs.138 Peter Marais, former Cape constitutional, cultural and municipal issues of Town mayor and former premier of the Western interest to its members or citizens in general and Cape province, currently the leader of the Brown manages campaigns where members help local Empowerment Movement, has indicated that municipalities to provide better services to all he would promote a campaign for the greater citizens and communities.134 The movement has autonomy or independence of the Western Cape also created a technical training facility, a private from ANC-ruled South Africa.139 university based on a broader philosophy of lifelong learning, a community radio station and a social welfare service.135 Sometimes, the non-state capacities are linked to actors in the private sector or certain rural areas, These initiatives sometimes complement, and at suburban neighbourhoods or towns. This trend is other times substitute state structures. In January visible in the plethora of private security companies, 2018, Flip Buys, the leader of the Solidarity used by an estimated 11% of households who Movement, stated: are taxpayers, but without receiving proper state protection. According to Gareth Newham of the Various events during 2017 highlighted ISS, the growth of the industry has been as a the fact that the shared vision around the result of the crime situation, but also of people [understanding] and interpretation of the not believing that they can rely on the police. The historic settlement of 1994, as recorded in the 2018 Victims of Crime Survey showed that public Constitution, has come to an end … This time, satisfaction with SAPS has decreased by 8% over the ruling ideology of radical transformation the past six years, to its current level of 54%.140 and the “national democratic revolution”, In poorer communities, vigilante movements jeopardise constitutional spaces and target the have emerged.141 In addition, homeschooling and private education initiatives, healthcare services,

133. https://solidariteit.co.za/en/. 134. https://www.afriforum.co.za/home/. 135. http://akademia.ac.za/; https://helpendehand.co.za/; http://www.sol-tech.co.za/. 136. http://www.politicsweb.co.za/opinion/transformation-ber-alles. 137. https://www.huffingtonpost.co.za/2018/07/02/king-goodwill-zwelithini-zulus-will-not-sit-by-while-their-land-is- debated_a_23472427/. 138. https://www.iol.co.za/news/politics/chief-khoisan-sa-rejects-traditional-and-khoisan-leadership-bill-18785276. 139. https://mg.co.za/article/2019-01-22-marais-makes-comeback-as-ff-western-cape-premier-candidate. 140. https://www.dailymaverick.co.za/article/2019-01-15-as-sa-policing-fails-private-security-steps-in-but-at-a-cost/. 141. https://foreignpolicy.com/2018/11/29/south-africans-are-taking-the-law-into-their-own-hands-vigilantism- extralegal-justice-police-apartheid-anc-private-security/. 46

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as well as energy production and distribution Southern Africa continue, while the capacity of services have expanded considerably in past years. the central state has been hollowed out after 25 years of ANC rule. Given the empowerment of individuals by communication and information technology,142 The dynamics of capacity building and authority as well as trends towards prosumers in the migration will influence the incentives and renewable energy sectors of other countries,143 preferences of citizens and communities. The these trends are likely to continue. They will also political dynamics in different neighborhoods, provide opportunities for considerable innovation zones and regions in South Africa will be very by business, but also by other organizations, divergent in future. International business and communities, neighbourhoods and cities. NGOs are advised to pay close attention to the different regional and local dimensions of political A multipolar future order and economic developments. In some areas of South Africa, the dynamics of A multipolar field of authority has emerged in self-help initiatives and authority migration may South Africa. Diverse and competing authority in time evolve into a mediated state. In these structures, sets of rules, and claims to power co- zones, “rule of the intermediaries” will substitute exist, overlap, and intertwine.144 Resilient and the rule of the central state. The government will fragile processes of state-reformation co-exist in accept this situation and try to align with these the new order.145 Organizations and institutions actors, not voluntary, but based on necessity.146 that do not form part of the central state fulfil several state functions in different ways in Overall, the impact of the ANC-ruled hybrid regime some areas or communities. Although the ANC on many citizens and communities has often government theoretically has the capacity to fulfil become negative. Attempts by diverse actors to at least some of these functions, it accepts this achieve greater decentralization and forms of modular state as part of its governance model. greater non-territorial and territorial autonomy within the region of Southern Africa are likely in During the past 500 years, there have been many the medium and long term. political orders in parts of the region currently designated as South Africa. South Africa as one political order is almost 120 years old. The current territory of South Africa is huge, with space for all of its many political actors, class formations and cultural groups. Interactions with other actors in

142. On the global rise in individual empowerment, see National Intelligence Council, Global trends 2030: Alternative worlds (National Intelligence Council, Washington, D.C., 2012). 143. http://www.sciencedirect.com/science/article/pii/S0301421512003473. 144. See Tobias Hagmann and Markus Hoehne, “Failures of the State Failure Debate: Evidence from the Somali Territories”, Journal of International Development, 21, 2009, pp 42-57. 145. Alan Whaites, States in development: Understanding state-building (Department for International Development, London, 2008), p 14. 146. Trutz von Trotha, “Der Aufstieg des Lokalen”,Aus Politik und Zeitgeschichte, 28-29, 2005, pp 32-38. See also Ken Menkhaus, “Governance in the hinterland of Africa’s weak states: Toward a theory of the mediated state”, paper presented at the Annual Meeting of the American Political Science Association, Philadelphia, US, 2006. 47

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Part IV The shift to a hybrid regime

From a flawed democracy to a Peter Fabricius has stated that solidarity among Africa’s former liberation movements bolsters an hybrid regime undemocratic ethos:

Roger Southall compares the record of the It perpetuates and reinforces the sense of liberation movements of Southern Africa after entitlement that these liberation movements- coming to power in Zimbabwe, Namibia and cum-parties all seem to have: the belief that South Africa. He concludes that even with the they are destined to govern forever. On that difficult legacies they inherited, their performance basic premise, any democratic opposition or in power has been deeply disappointing. While criticism is easy to dismiss as manifesting a they will survive organizationally, Southall states sinister “regime change” agenda.148 that their essence as progressive forces is dying.147

147. See Roger Southall, Liberation movements in power: Party and state in Southern Africa (James Currey, Suffolk, 2013). 148. https://issafrica.org/iss-today/when-democracy-becomes-regime-change.

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Samuel Issacharoff, Reiss professor of In the case of the ANC, the following non- Constitutional Law at the New York University democratic dynamics are active: the non-pluralist School of Law, also stated in 2013: political culture of the ANC and the capture of state institutions by cadre deployment; the ruling As the founding generation moved off the party of a one-party dominant state becoming historic stage, however, and as less-broad- the gatekeeper to power; a weaker separation minded functionaries took the reins of power, of powers; personalised and unaccountable the heroic ANC emerged as the head of an presidentialism; weak or neutralized checks on the increasingly one-party state, with all the executive and the uneven implementation of the attendant capacity for antidemocratic abuse. rule of law to the president; selective patronage South African democracy entered a period of and corruption; and the increased securitization what is termed “dominant party” democracy, of politics. a term that may simply connote the imminent collapse of real democratic contestation.149 Electoral politics still matter in South Africa, but they do so in a subservient role to the new Drivers of a hybrid regime institutional arrangement of the order that provides the electoral opportunities. In the case of South Africa, political patronage, intimidation In 1994, high hopes existed internationally for and violence also form an active dimension of the new multiparty political order, with Nelson elections.152 Away from the daily lives of most Mandela as its first president and Thabo Mbeki citizens, these dynamics represent a distinctive and F.W. de Klerk as its vice-presidents. By 2014, political order: a hybrid regime. The political after six years of rule by President Jacob Zuma and incentive systems, the rules of the game, and the twenty years of ANC rule, the one-party dominant field of power differ from that of democracies. state had transformed into a hybrid regime.150 President Zuma no longer makes an effort to In political science, a political regime is the disguise his approach in the one party dominant particular set of institutions that govern a state. On 7 November 2015, he stated at an ANC country, constitute the incentive systems and conference in Durban: establish both the formal and informal rules of a political game.151 A hybrid regime can be many variants of institutional arrangements, due to the I argued one time with someone who presence of both democratic and non-democratic said the country comes first and I said processes and institutions. In hybrid regimes, the locus of political power is not the legislature and as much as I understand that, I think elections, and democratic checks and balances on my organisation, the ANC, comes first. the executive are weak. The locus of politics shifts from accountable democratic institutions to a field Because those people, if they are not of power in which weak democratic institutions part of the ANC and there was no ANC and non-democratic institutions interact. they could be misled. They could be under ... oppression forever.153

149. Samuel Issacharoff, “The democratic risk to democratic transitions” at http://constitutionaltransitions.org/wp- content/uploads/2013/09/Issacharoff-Democratic-Risk-to-Democratic-Transitions.pdf, pp 8-9. 150. Also see Oda van Cranenburgh, “Democracy promotion in Africa: the institutional context”,Democratization , 18(2), 2011, pp 443-461. 151. For a major overview of the work on hybrid regimes, see Andrea Cassani, “Hybrid what? The contemporary debate on hybrid regimes and the identity question”, XXVI Convegno SISP Università Roma Tre – Facoltà di Scienze Politiche Roma, Roma, Italia, 13-15 Settembre 2012. 152. See Part VI. 153. http://www.bdlive.co.za/national/politics/2015/11/08/the-anc-comes-first-not-the-country-says-zuma?cx_tag=bcuf.

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President Cyril Ramaphosa’s first State of the monial politics of the elites has “devoured” much Nation Address was an attempt to reassert of the state and its resources. Government-driven and augment the hegemonic hold the ANC has neopatrimonial politics in the public and private exerted over South African politics for the last two sector are set to continue and even intensify decades. It was, thus, heavy on rhetoric and low during times of greater scarcity. on hard, quantifiable objectives and outcomes. The extra reserves that would be needed to change He spoke of a “new dawn”, but acknowledged the system again, this time into a truly democratic none of the contemporary forces that brought regime, are exhausted. A restructuring around new about his election – the judiciary, the media, alliances and new emphases has already occurred civil society, public advocacy and the opposition. since Ramaphosa has become the ANC leader. This Rather, he drew on the ANC’s history of old, and process will continue if Ramaphosa were to remain so, by omission, created the impression that the the state president after the general elections of cause of the country’s decay and decline – the 2019. At best, some democratic institutions may ANC – was, simultaneously, the cure.154 become more influential relative to the non- democratic ones on some issues. However, as Three drivers will reinforce the dynamics of a argued in Part V, Ramaphosa will have to operate hybrid regime and democratic decline in the next within the dominant dynamics of a hybrid regime. few years. The first driver is intensified factional competition for positions and access to state ANC intolerance of dissenting views resources. The resources are scarcer due to years of unproductive and profligate spending, The Tripartite Alliance comprising the ANC, pervasive self-enrichment and patronage politics. the much smaller South African Communist With Ramaphosa elected as president and ANC Party (SACP) and the trade union federation, leader, factional tensions in the ruling alliance the Congress of South African Trade Unions have increased and politicians are re-positioning (COSATU) have won in five national elections in themselves. South Africa between 1994 and 2014. While the ANC participated in elections, its leadership’s The second driver is the increased securitization rootedness in an armed struggle still permeated of politics: intimidation, protests and political its political culture. assassinations increasingly form part of local intra-ANC struggles and opposition politics. As The Economist concludes in its review of the However, there are clear signs that the risk of study of the ANC in exile by the prominent scholar political killings now also extends to provincial and in African Studies, Professor Stephen Ellis: national politicians, which increases the paranoia 155 among incumbent ANC politicians at all levels. The real message of Stephen Ellis’ history of This state of affairs also continuously draws in the the African National Congress (ANC) in exile security cluster and politicized top of the security – painfully and palpably obvious between the forces. The institutions that could restrain the lines – is how the conspiratorial past affects executive are weaker than in 1994. the ruling party to the present day. It makes uncomfortable reading, for it goes some way The third driver is the economy, which is struggling. towards explaining why President Jacob Zuma, In previous years, the strength of the economy a former head of the ANC’s intelligence service and built-up infrastructure provided a cushion in exile, and his comrades now running South for the ANC not to face the consequences of Africa find it so hard to embrace the notion that neopatrimonial policies. However, the neopatri­

154. https://www.dailymaverick.co.za/article/2018-02-17-op-ed-ramaphosas-state-of-the-nation-address-a-weak-speech- that-follows-more-than-it-leads/. 155. See Mark Shaw, Hitmen for hire: Exposing South Africa’s underworld (Jonathan Ball, Cape Town, 2017) for a good analytical study. 50

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a diversity of opinion and tolerance of dissent and a “communist society”. Consistent with must be at the heart of any functioning, decent this statement, was the council’s adoption of a democracy.156 declaration reaffirming the party’s commitment to a NDR.160 William Gumede, Oppenheimer fellow at St Antony’s College, Oxford, and the biographer of Anthea Jeffery of the IRR, a liberal think tank, is one former President Thabo Mbeki and Archbishop of the foremost experts on the NDR. According to Emeritus Desmond Tutu, already noticed during her, as a result of the NDR framework, the ANC Mbeki’s rule that the ANC’s political style in exile sees itself as a national liberation movement has become the dominant pattern of the ANC responsible for implementing the NDR and in government. The ANC’s approach was one of uniquely entitled to rule.161 This approach is centralised decision-making, unquestioned loyalty, clear in ANC discourse.162 It often marginalizes or sycophancy, and no public criticism, as opposed denies the contributions of the multiracial United to the open debate of a dynamic democracy.157 Democratic Front (UDF),163 the predominantly Padraig O’Malley has indicated how ANC leaders Zulu IFP,164 liberals and reformists from all in exile have continued to use the paradigm of ethnic groups,165 and the Black Consciousness exile while being in power, immune to external Movement166 to the struggle against different criticisms and responsive only to themselves.158 dimensions of minority rule.

The ANC has repeatedly recommitted itself to a A political scientist at the University of Stellenbosch National Democratic Revolution (NDR) in South in South Africa, Nicola de Jager, writes: Africa. This has been the case at its national conferences at Mafikeng (1997), Stellenbosch (2002), Polokwane (2007) and Mangaung (2012). If you are critical of the ANC-led government or So has former President Zuma.159 At the Fourth its officials, then you will be branded as disloyal National General Council of the party in Midrand to South Africa and the future of South Africa ... in October 2015, Zuma repeated that the ANC and Consequently, there is little room for the voices the “vanguard” SACP were partners facing in the of opposition parties, since they are portrayed as “same direction” towards a “socialist revolution” “forces opposed to transformation”. Opposition

156. http://www.economist.com/news/books-and-arts/21569372-how-conspiratorial-past-affects-present-day-good- guys-were-often-bad and External mission: The ANC in exile, 1960-1990 (Hurst, London, 2012) by Stephen Ellis, former Desmond Tutu professor in the Social Sciences at the Free University Amsterdam. 157. William Mervin Gumede, Thabo Mbeki and the battle for the soul of the ANC (Zebra Press, Cape Town, 2005), pp 292-301. 158. Padraig O’Malley, Shades of Difference – Mac Maharaj and the struggle for South Africa (Viking, New York, 2007). 159. http://politicsweb.co.za/politicsweb/view/politicsweb/en/page71654?oid=365935&sn=Detail& pid=71654. 160. http://www.bdlive.co.za/opinion/columnists/2015/10/19/wrong-to-ignore-implications-of-ancs-revolutionary- ideology. 161. http://www.sairr.org.za/sairr-today-1/research-and-policy-brief-the-national-democratic-revolution-ndr-its-origins- and-implications-31st-may-2012. 162. http://www.politicsweb.co.za/politicsweb/view/politicsweb/en/page72308?oid= 150911&sn=Marketingweb%20 detail. 163. Ineke van Kessel, “Beyond our wildest dreams”: The United Democratic Front and the transformation of South Africa (University Press of Virginia, Charlottesville, 2000). 164. Nigel Worden, The making of modern South Africa: Conquest, apartheid, democracy (Wiley-Blackwell, West Sussex, 2012); Hermann Giliomee and Bernard Mbenga, New history of South Africa (Tafelberg Publishers, Cape Town, 2007). 165. Hermann Giliomee, The last Afrikaner leaders: A supreme test of power (University of Virginia Press, Charlottesville, 2013); Mohamed Adhikari, Burdened by race: Coloured identities in Southern Africa (University of Cape Town Press, Cape Town, 2009). 166. Thomas G. Karis and Gail M. Gerhart, From protest to challenge: Nadir and resurgence, 1964-1979 (V): A documentary history of African politics in South Africa 1882-1990(Unisa Press, Pretoria, 1997); Daniel R. Magaziner, The law and the prophets: Black consciousness in South Africa, 1968-1977 (Ohio University Press, Athens, 2010).

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is further constrained by the very real threat of and property rights.170 After several years, this being branded as disloyal to South Africa if one political culture and approach have transformed is critical of the ANC-led government.167 the multiparty democracy into a hybrid regime.

This reflects the historical institutional dynamics of the party. The Dutch historian Ineke van Kessel ANC politics “eats the state” states: The ANC is already widely in control of the state As in the 1980s, in my interviews over 2006- institutions, after a deliberate policy of cadre 2008 I often encountered a profound distrust deployment in all centres of power. The party has in pluralism. ANC officials and representatives captured state institutions, which have on many often do not see a distinction between party levels become partisan, rather than the impartial and state and perceive the ANC as the sole bureaucratic organizations of a democracy. legitimate locus of power … It is alright to have Patrimonial and legal-bureaucratic elements now the Democratic Alliance in Cape Town, which is co-exist in a neopatrimonial political system.171 perceived as “a thing for whites”, in spite of the Through its control thereof, the ANC is a source DA’s substantial Coloured support. However, in of jobs and careers. The ANC also mobilises and one’s own district, municipality or constituency, uses state resources, as well as access to business rival political parties such as the PAC and opportunities. As a result, it remains the best- AZAPO ought to be silenced, side-lined or even funded political party and can counter electoral “crushed”. The distinct historical traditions in initiatives by opposition parties. different parts of South Africa have produced different understandings of the concept of A hybrid regime also constitutes a different way democracy.168 of elite management. The ANC can use its capture of state institutions and state-based patronage The ANC, as Jeffery identifies, does not regard to reward allies and punish opponents. It can itself to be bound by the Constitution of 1996.169 reinforce intra-elite unity, and contain potential It considers the Constitution to be a tactical defectors that may form viable opposition compromise to be changed as the balance groups.172 of power shifts in favour of the ANC. Various constitutional provisions have in practice simply One-party dominance, instrumental individual been disregarded. These include Parliament’s patron-client relations and more socially-based duty to hold the executive to account, the need norms and practices of patronage permeate for a new electoral system after 1999, and the the captured state. They reproduce uncertainty prohibition of cadre deployment. about the role and behaviour of state agents.173 Neopatrimonial political dynamics also play a The NDR also means that the ANC has no principled major role in Russia, the Balkans and several Asian commitment to key constitutional safeguards, and Latin-American states. However, particular including press freedom, an independent judiciary African and South African historical drivers shape

167. http://www.kas.de/wf/doc/kas_10560-1522-2-30.pdf?070328103113, pp 15, 25. 168. Ineke van Kessel, The changing meaning of change: The legacy of the United Democratic Front in South Africa, Fourth European Conference in African Studies, Nordic Africa Institute, Uppsala, Sweden, 15-18 June 2011, p 8. 169. See the text at http://www.justice.gov.za/legislation/constitution/constitution.htm. 170. http://www.sairr.org.za/sairr-today-1/research-and-policy-brief-the-national-democratic-revolution-ndr-its-origins- and-implications-31st-may-2012. 171. In its use of the concept of neopatrimonialism, the report follows the approach of Gero Erdmann and Ulf Engel, “Neopatrimonialism revisited – beyond a catch-all concept”, GIGA Research, 16, February 2006, pp 10, 14. 172. See Susan Booysen, The African National Congress and the regeneration of political power, 1994-2011 (Wits University Press, Johannesburg, 2011); http://mg.co.za/article/2014-10-16-inside-the-ancs-pyramid-scheme. 173. For a good overview, see Jean-Francois Bayart, The state in Africa. The politics of the belly (Longman, London, 1993). 52

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neopatrimonial politics in the ANC’s hybrid regime. The government’s state-owned enterprises (SOEs) According to Tom Lodge, the ANC historian and such as ESKOM, South African Airways (SAA) political scientist, neopatrimonial practices have a and the South African National Roads Agency long history within the ANC. They were restricted (SANRAL) provide a mainstay of ANC patronage. during its years in exile and began to resurface once The parastatals, with their billions in lucrative the armed struggle was over. The party’s historical procurement budgets and responsible for huge ties to criminal networks, pressures arising from losses, have become an important arena of battles the transition to majority rule, and contemporary over state capture. Questionable, dubious and electoral politics played a role. Neopatrimonialism very expensive deals have been done at many also reflected broader tendencies within South parastatals for years.177 African political and economic life.174 Neopatrimonial factions competing Susan Booysen, a political scientist at the University of the Witwatersrand, concludes that for spoils the ANC-in-government is the custodian of high levels of visible mismanagement and exploitation Approximately 20 million individuals were of state resources for personal benefit. Activities registered to pay income tax in 2016. However, in the “dubious but legal” category are tolerated individuals who are paid less than R350 000 a and emulated. There is little hesitation to pursue year by a single employer, with no other sources business interests through the state.175 The ANC of income and no deductions, need not submit a used political power to gain economic clout, tax return. Thus, only 6 367 627 individuals were which its patrons and networks converted into required to submit tax returns for the 2016 tax more political power. That power was used to gain year.178 Many of these taxpayers who are paying even more clout in the market. an estimated 99% of personal tax in South Africa voted for opposition parties or abstained from It is well-resourced and ensures that it stays voting. Still, the ANC also used their money to that way, if necessary through leveraging rebuild an uneven electoral playing field in the state resources and the movement acting as a hybrid regime. business operative, often dressed in patriotism and empowerment. The ANC was the best- Especially since about 2011, the ANC has resourced party in South Africa. It seamlessly increasingly had to rely on its control of leveraged state power for financial deals – with government and state institutions for support. This the state and by the ANC benefactors. The was due to the combined effect of the so-called ANC’s Chancellor House business operations, liberation dividend becoming thin, compared to largely veiled from public scrutiny, dealt in the lack of service delivery, more internal factional mega-scoring business deals with the state. competition for power and positions, as well as Chancellor House would help guarantee the many new young voters becoming disgruntled ANC the resources to counter opposition and supporting opposition parties. advances, including electoral initiatives.176 Alexander Beresford, a specialist in African politics

174. Tom Lodge, “Neopatrimonial politics in the ANC”,African Affairs, 450, 2014, pp 1-23. 175. Susan Booysen, The African National Congress and the regeneration of political power, 1994-2011 (Wits University Press, Johannesburg, 2011), p 5; Conference, One hundred years of the ANC: Debating liberation histories and democracy today, 20-24 September 2011 at http://www.sahistory.org.za. 176. http://www.iol.co.za/business/news/sa-slips-down-corruption-index-1.1616304#.VGwZdpUcTIU. Also see Paul Holden, “Ensuring reproduction: The ANC and its models of party funding”,in Martin Plaut and Paul Holden (eds), Who rules South Africa? Pulling the strings of power (Jonathan Ball: Johannesburg, 2012), pp 193-202; Roger Southall, “The ANC for sale? Money, morality & business in South Africa”, Review of African Political Economy, 35 (116), June 2008, pp 281-299. 177. http://www.sec.gov/news/pressrelease/2015-212.html; http://mg.co.za/tag/parastatals; http://mg.co.za/ article/2016-09-02-00-treasurys-bids-to-end-corruption-are-peeling-back-a-curiously-connected-gravy-trail. 178. https://businesstech.co.za/news/finance/218815/this-is-who-is-paying-south-africas-personal-income-tax/. 53

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at the University of Leeds School of Politics and and in the run-up to the election of an ANC leader International Studies, talked to former cabinet in 2017 and the national elections in 2019. The ministers of the Nelson Mandela and Thabo Mbeki split in the ANC-aligned COSATU and the resulting administrations, and current members of the competition between trade unions, as well as party’s NEC. He points towards what he prefers to pressure from key potential constituencies like call “gatekeeper politics”:179 the urban middle class, will reinforce factional tensions and struggles, sometimes in the form of The interplay between money and power is violent group struggles or political assassinations. complex, with each feeding the other, but They will also reinforce the dynamics of a hybrid Beresford told UJ students that ANC patronage regime in a new symbolic and political order. has two core elements: the distribution of the spoils of power, such as control over Party-state separation, cadre developmental project jobs wielded by ANC councillors, and the phenomenon of crony deployment and patronage capitalism, where closeness to the ANC provides access to market opportunities and tenders. The ANC has adopted “democratic centralism” as a central policy: this means that the making of all In both cases that makes those policy decisions is concentrated in the NEC, the ANC’s highest decision-making body. This policy is who guard the gates, whether to not only indifferent to the federal structure and government money or to those in power, multiple centres of policy-making envisaged by the South African Constitution. In its execution, it important – and makes the contest for is corroding the democratic checks and balances the position fierce. “This allows us to built into the Constitution.183 understand the factional politics,” he The ANC pursues democratic centralism by a policy said. “The struggle for who controls of cadre deployment. This policy entails placing 180 party loyalists in “key centres” of power. The ANC the gates is extremely intense.” conference in 1997 identified these centres of Former President Thabo Mbeki has criticized Zuma, power as “the army, the police, the bureaucracy, but acknowledged that self-enriching ANC cadres intelligence structures, the judiciary, parastatals, had already been prominent during his own term and agencies such as regulatory bodies, the public in office.181 Former President Kgalema Motlanthe broadcaster, the central bank and so on”. The has stated that the ANC’s internal democracy is 2007 ANC Polokwane conference, during which impaired, and that the ANC is currently made up Jacob Zuma was elected as president of the ANC, mostly of members and leaders devoid of the kind added the “private sector”. of political ability and consciousness required to maintain a united and non-racial society.182 Cadre deployment has been used to quell dissent and to co-opt potential internal opposition from There are members and supporters who deplore the ANC’s parliamentary caucus. In addition, the these dynamics, but they have limited influence. ANC and bureaucratic structures are permeated As predicted, factional struggles in the ruling by informal, patron-client relationships that alliance have increased during the local elections often stem from the struggle period, family and

179. http://mg.co.za/article/2014-10-16-inside-the-ancs-pyramid-scheme. 180. http://mg.co.za/article/2014-10-16-inside-the-ancs-pyramid-scheme. 181. “Mbeki blasts Zuma’s leadership”, Times Live, 21 October 2014. 182. http://www.bdlive.co.za/national/2015/11/02/tripartite-alliance-is-dead-says-motlanthe. 183. William Mervin Gumede, Thabo Mbeki and the battle for the soul of the ANC (Zebra Press, Cape Town, 2005), p 305.

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ethnic networks, spiritual advisers, and new who qualify and not only to ANC loyalists. When it business partnerships.184 Patronage has turned comes to the allocation of housing, contracts and cadre deployment into a policy that does not certainly recruitment for jobs, there is ample room only ensure control on the party’s behalf, but has for favouritism, but the social grants system seems also morphed into a means to ensure the power largely immune from political interference.189 of the presidency. 185 From 2013 to 2017, Cyril Ramaphosa was both Zuma’s deputy president According to the World Bank, such an approach, and the chair of the ANC’s NDC in charge of cade combined with a redistributional tax system, deployment.186 has lifted 3.6 million people out of poverty in the recent past.190 However, the government has Patronage politics proved unable to ensure or facilitate a strong education system. The grants, as Steinberg remarks, symbolizes the failure of sufficient job In practice, patronage politics has resulted in the creation. number of civil servants ballooning. Salaries have also exceeded the inflation rate. In essence, the The current model has a political effect: it taxpayers are funding the ANC’s growing cadre- reinforces citizens’ dependence on the ANC-ruled 187 led patronage machine. state. It is also increasingly difficult to sustain, due to the minority of about 6.3 million taxpayers in In some areas that may affect political support a population of more than 56 million people and in the short term, the ANC does provide good rising state debt.191 services, which also serves as a form of patronage. Housing for the poor has meant that one in five now lives in a state-provided house. Based on Reshaping markets and the support from the financial services sector, and democratic playing field the redistribution of tax money from a small base of taxpayers, the state delivers pensions, child- As the political scientist Kenneth Greene has support grants and disability payments to more demonstrated, where there has been a one- than seventeen million people per month.188 party dominant system for several terms in office, the dominant party tends to politicize Van Kessel states that when it comes to social the government’s public resources. The party grants, the South African state functions as a then uses them for partisan purposes. There bureaucratic state, dispensing its services to those is no external constraint in the form of possible

184. Stephen Ellis, External mission: The ANC in exile, 1960-1990 (Hurst, London, 2012); Tom Lodge, “Neopatrimonial politics in the ANC”,African Affairs, 450, 2014; http://mg.co.za/article/2014-10-16-inside-the-ancs-pyramid-scheme. 185. http://www.bdlive.co.za/opinion/columnists/2015/11/02/zumas-control-over-top-salaries-buys-him-loyalty. Also see http://www.bdlive.co.za/opinion/columnists/2014/11/12/state-of-the-anc-the-big-picture-with-jacob-zuma-in-the- centre; http://www.dailymaverick.co.za/article/2015-10-20-anc-membership-numbers-what-is-the-significance/#. VkZSk5qBfmR. 186. https://www.politicsweb.co.za/opinion/cadre-deployment-ber-alles. 187. “The reason for our lack of delivery” (editorial), Financial Mail, 31 October 2014; http://www.bdlive.co.za/opinion/ columnists/2014/10/20/the-disintegration-of-cadre-deployment-under-zuma. Also see http://www.bdlive.co.za/ opinion/columnists/2013/09/08/this-is-the-business-an-orgy-of-jobs-for-bureaucratic-pals. 188. http://www.bdlive.co.za/opinion/2013/05/31/anc-will-deliver-just-enough-to-stay-in-power;https://businesstech. co.za/news/business/180503/there-are-officially-more-south-africans-on-social-grants-than-people-who-work-irr/; https://city-press.news24.com/News/57-million-social-grants-to-be-paid-directly-from-april-1-sassa-20180308. 189. Ineke van Kessel, “The changing meaning of change: The legacy of the United Democratic Front in South Africa”, Fourth European Conference in African Studies, Nordic Africa Institute, Uppsala, Sweden, 15-18 June 2011, p 14. 190. http://businesstech.co.za/news/international/72934/south-africa-among-the-most-unequal-countries/ and http:// www.worldbank.org/en/topic/poverty. 191. See Part X on South Africa’s approaching fiscal cliff; https://businesstech.co.za/news/finance/218815/this-is-who-is- paying-south-africas-personal-income-tax/. 55

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alternation, and no internal constraint either. Behind closed doors, the Department of Trade The bureaucracy is politically controlled through and Industry (DTI) is secretly strong-arming non-merit-based hiring, dismissal, demotion and South Africa’s finest companies to adopt new promotion. This monopoly also reinforces the BEE regulations under the threat of damage political dominance of the party. As the scholar of to their reputations. The proposed fines and Latin American democracy, Guillermo O’Donnell, mandatory prison sentences are one thing; puts it, executives have submitted to the vertical damage to a firm’s good name is something accountability of electorates but not to the else entirely. In this hostile milieu, no business horizontal accountability of other government dares to be accused of racism, whatever the agencies.192 facts. But the government now consumes 32% of national income each year. As such, too many According to Greene, public resources can be businesses are connected to the government’s used for partisan purposes by appointing party sphere of economic influence to be able to supporters to senior positions in publicly-owned ignore its directives.195 corporations. In various ways, public resources are transferred to the party: through politicized International business will periodically encounter appointments in the bureaucracy to reward similar dilemmas. party supporters and punish party opponents; by privileging party-aligned businesses to contract Under attack for having too much influence over with the state and publicly-owned corporations; Zuma’s decision making, the three Gupta brothers by contracts for public works contracts and other wanted the help of public relations company forms of tenders, subsidies, advertising revenue Bell Pottinger, a major player in the global public and tax breaks to such entities.193 The tools of relations industry. Bell Pottinger was persuaded repression and electoral fraud need not be relied by Zuma’s son Duduzane and the prospect of high on in a hybrid regime. People and enterprises fees to run a campaign targeting businesses citical soon learn that their prospects depend on their of ANC misgovernance. political connections.194 According to leaked documents, Duduzane said the Smears of racism against political campaign should be “along the lines of economic emancipation of whatever” with a “narrative that opponents or economic rivals grabs the attention of the grassroots population who must identify with it, connect with it and feel As South African Monitor predicted in past years, united by it”. A campaign ensued that eventually when under pressure over bad governance or included the mainstream news outlets, The New during tough negotiations, the ANC could easily Age and ANN7, as well as social media, generating resort to conspiracy theories or to smearing tens of thousands of tweets and hundreds of opponents as “imperialists”, “racists”, “fascists” or Facebook posts since 2016. Its campaign targeted “colonialists”. wealthy white South African business rivals to allegedly deflect attention from the Guptas’ close This may involve different forms of pressure and links to President Zuma. intimidation. Loane Sharp, an economist, states:

192. See also Guillermo O’Donnell, Horizontal accountability and new polyarchies, Kellogg Institute, 1998 at https:// kellogg.nd.edu/publications/workingpapers/WPS/253.pdf. 193. See Kenneth Greene, Why dominant parties lose: Mexico’s democratization in comparative perspective(Cambridge University Press, Cambridge, 2007); “The political economy of authoritarian single-party dominance” at http:// kgreene.webhost.utexas.edu/ greene%20pol%20econ%20auth%201p%20dom.pdf; http://www.dailymaverick.co.za/ article/2012-12-05-the-ancs-deadly-trinity-politics-power-patronage/#. UnK9675gXzA. 194. https://www.businesslive.co.za/rdm/politics/2017-01-04-politics-live-brace-yourself-an-angry-populist-zuma- in-2017/; https://www.news24.com/SouthAfrica/News/inside-the-gupta-heist-20180121-2. 195. http://www.bdlive.co.za/opinion/2015/04/20/why-new-bee-codes-will-pull-the-rug-from-under-business. 56

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In November 2016, Johann Rupert, chief executive Bank was asked to meet both the ANC, as well as officer (CEO) of Richemont, announced that Bell the cabinet’s inter-ministerial committee, in an Pottinger was behind a campaign that was making attempt to exert political pressure on it to reverse personal attacks on him and that included the its decision. The meeting with the ANC, which phrase “white monopoly capital”. Bell Pottinger took place at Luthuli House on 21 April 2017, denied the allegations.196 An investigation by included the then ANC secretary-general and law firm Herbert Smith Freehills found that Bell Ramaphosa confidante, Gwede Mantashe, Jessie Pottinger’s work included material that was Duarte, currently the deputy secretary general “potentially racially divisive and/or potentially of the ANC, and the head of the ANC’s economic offensive”. Francis Ingham, director of the UK transformation committee, Enoch Godongwana. industry’s regulator, the Public Relations and In the meeting Standard Bank CEO, Sim Tshabalala, Communications Association (PRCA), called it the was asked to respond to the accusation “that it most unethical public relations work he had seen was colluding with monopoly capital to oppress a in a decade. After investigation, the PRCA expelled black-owned business”. Bell Pottinger from the PRCA in response to the accusations that it had stirred up racial tensions, In addition to the meetings, it has also been and the company collapsed as a result of the revealed that Oakbay had lobbied an international scandal.197 shareholder of Standard Bank, claiming that it had illegally colluded with other banks and saying Local businesses also experienced direct that its motivations in closing the accounts had government pressure. Standard Bank in December been racist. This was done without informing 2017 filed an affidavit in the High Court in Pretoria, Standard Bank.198 The risk of similar campaigns appealing for protection against extensive political against recalcitrant negotiating parties, business pressure it had come under from the ANC, cabinet competitors and political opponents will remain ministers and the Gupta-linked Oakbay after it considerable. had closed the company’s accounts. Standard

196. https://www.theguardian.com/media/2017/sep/05/bell-pottingersouth-africa-pr-firm. 197. https://www.biznews.com/undictated/2018/01/08/best-2017-bell-pottingers-gupta-work-unethical-ive-ever-seen- prca-dg/; http://www.telegraph.co.uk/business/2017/09/04/report-slams-bell-pottinger-race-hate-south-africa- campaign/. 198. https://www.businesslive.co.za/bd/politics/2016-12-15-breaking-news-standard-bank-files-explosive-affidavit- seeking-protection-from-political-interference/.

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Part V Factional struggles and Ramaphosa’s challenges

Intertwined legal and illegal security agencies. As in countries like Mexico and Colombia, these two domains co-exist in the same 200 domains199 political system. Historically, the legal and illegal domains are also interlinked in South Africa.201 In South Africa has a formal conventional economy, the case of the ruling ANC, partnerships of some which has become strongly entangled with the cadres with drugs and smuggling crime syndicates ANC political elites. However, there also is an during the years of the political underground and informal economy, part of which is dominated exile have continued after 1994.202 by crime syndicates with links to politicians and

199. For an analysis of this dimension during the Zuma presidency, see South African Monitor, (8), February 2018, part VII at https://sa-monitor.com/south-african-monitor-report-8-february-2018/. 200. Jean-François Bayart, Stephen Ellis and Béatrice Hibou, The criminalization of the state in Africa (James Currey, Oxford, 1999). 201. R.W. Johnson, How long will South Africa survive? The looming crisis (Jonathan Ball Publishers, Cape Town, 2015), pp 18-49. 202. Stephen Ellis, External mission: The ANC in exile 1960-1990 (Hurst, London, 2012), pp 168-170, 273-274. Also see South African Monitor, (8), February 2018 at https://sa-monitor.com/south-african-monitor-report-8-february-2018/.

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According to R.W. Johnson, the Zuma presidency ministers,208 as well as trusted internal ANC (2009-2018) has brought about the widespread operators was also clear.209 further criminalisation of the state.203 Ramaphosa served as the vice-president from 2014-2018. A Over time evidence emerged of the influential role series of billion-dollar arms trade scandals, referred played by one business network, that of the Indian to as the “Arms Deal”, reach to the inner core of . By the middle of 2013, the South the ANC and the foundation of the new political African Revenue Service (SARS) was investigating order. It allegedly involved the then minister of the Guptas for possible tax evasion. In 2014, Zuma Defence Joe Modise and later Presidents Thabo appointed Thomas Moyane as commissioner of Mbeki and Jacob Zuma. All the details of the Arms SARS. His predecessor, Oupa Magashula, resigned, Deal have not been unearthed yet, but much is owing to alleged involvement in nepotism. already available in the public domain.204 Moyane’s assignment was to restructure SARS, whose independence and efficiency had The main political and legal issues at stake in threatened the Guptas and some of Zuma’s allies. the arms scandal, including Zuma’s alleged Media campaigns formed part of this campaign. involvement, have not been resolved.205 The High Many cases were put on ice. Especially a few very Court ruled on 29 April 2016 that Zuma should competent officials were targeted by Moyane.210 face corruption charges over a 1999 arms deal. Investigative journalist Jacques Pauw documented The charges were dropped just weeks before the campaign by State Security Agency (SSA) the 2009 election which led to Zuma becoming officers against SARS officials that could threaten president. The judge said the decision to drop the corrupt business interests of Zuma allies and the charges was “irrational”. It remains to be seen also of some SSA senior officials.211 whether the National Prosecuting Authority (NPA) will effectively reinstate the charges.206 The so-called State Capture project of the Gupta brothers during the Zuma presidency included Presidentialism and the executive their influence on cabinet appointments and state contracts.212 Thousands of personal e-mails from the Gupta family and their associates were released Unaccountable presidentialism constitutes a key in 2017 in what became known as #Guptaleaks. It force in the ANC’s hybrid regime. The ANC under exposed , President Zuma’s son, Zuma used a big cabinet with frequent reshuffles as the key middleman for the Guptas. In exchange to ensure the support of key constituencies and 207 for being appointed as director of several Gupta networks. The ANC’s top six officials were companies and numerous material benefist, he influential in President Zuma’s political decisions. ensured that the Guptas’ choice of ministers, The importance of top security officials and parastatal CEOs and top officials were appointed

203. R.W. Johnson, How long will South Africa survive? The looming crisis (Jonathan Ball Publishers, Cape Town, 2015), p 45. 204. http://mg.co.za/article/2011-12-02-arms-deal-bell-was-deaf-to-bribes-and-lost-out; http://mg.co.za/specialreport/ the-arms-deal; http://www.armsdeal-vpo.co.za/articles04/told_you_so.html; Paul Holden and Hennie van Vuuren, The devil in the detail: How the Arms Deal changed everything (Jonathan Ball, Johannesburg, 2011); Andrew Feinstein, After the party: Corruption, the ANC and South Africa’s uncertain future (Verso, London, 2009). 205. http://mg.co.za/article/2015-07-02-judge-seriti-has-left-the-building. 206. http://www.bbc.com/news/world-africa-36169594. 207. http://www.bdlive.co.za/opinion/columnists/2015/11/02/zumas-control-over-top-salaries-buys-him-loyalty. Also see http://www.bdlive.co.za/opinion/columnists/2014/11/12/state-of-the-anc-the-big-picture-with-jacob-zuma-in-the- centre. 208. See Part VII. 209. Susan Booysen, Dominance and decline: The ANC in the time of Zuma (Witwatersrand University Press, Johannesburg, 2015), pp 69-72. Also see http://mg.co.za/article/2014-05-22-kitchen-cabinet-helps-jz-to-rule. 210. Jacques Pauw, The President’s keepers: Those keeping Zuma in power and out of prison (Tafelberg, Cape Town, 2017), pp 84-85;123-157. 211. Jacques Pauw, The President’s keepers: Those keeping Zuma in power and out of prison (Tafelberg, Cape Town, 2017), p 49. 212. http://www.dailymaverick.co.za/article/2016-11-02-analysis-thulis-final-game-changer/#.WCjKuoWcFOx. 59

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to divert lucrative contracts to some of their eye to the business activities and relationships of companies.213 The Guptas denied any wrongdoing. the key power brokers in the NEC.

Zuma’s faction has tried for years, also by using Among them are the treasurer-general, Paul the security services, to prevent the Treasury and Mashatile, and the deputy president, David Ministry of Finance from opposing their efforts Mabuza, respectively the provincial ANC leaders to gain more access to patronage via lucrative of and . Both have been deals and SOEs.214 Since becoming president, very close to private business interests. The ANC Ramaphosa and those supporting him have chairman, Gwede Mantashe, has been named in removed several corrupt pro-Zuma ministers tender-related scandals, which have been linked and high-profile officials. However, Ramaphosa’s to procurement transactions for his wife and power base in the factionalized ANC has limits, and son. The secretary-general’s office is headed by he has not yet succeeded in completely stamping two Gupta associates, and Jesse his authority on the ANC. Duarte. A deal to elect Ramaphosa? According to Roger Southall, professor in sociology at the University of the Witwatersrand, ANC electoral procedures are deeply corrupted In the months before the ANC leadership election by money changing hands, personal ambition of December 2017, its two main factions were 217 215 and factionalism. Richard Poplak described the locked in a stalemate. On 18 December 2017, process that resulted in this outcome in more Zuma’s deputy president Cyril Ramaphosa was graphic language: elected as leader of the ANC at the party’s fifty- fourth elective conference. He narrowly defeated Extra-democratically, out of sight of the 5 000 his rival, Nkosazana Dlamini-Zuma, ex-wife of or so comrades lolling about the Nasrec President Zuma and supported by Zuma, by 2 440 grounds, the steering committee decided that to 2 261 votes. This did not compare favourable only 17 of the missing votes would be counted with Zuma’s 60-40 win over Mbeki in 2008. and that Ace (Magashule), we learned, would stay on as Secretary General. Regardless of the Ramaphosa, often referred to as CR in public eventual justifications, this is the very essence discourse, was elected in 2012 as deputy leader of of corruption. The palace intrigue has become the ANC and appointed as deputy president under boring – the gruesome quid-pro-quos of this Zuma from 2014. Since 2014, he had also been the deal will eventually be laid out in a bestselling head of the National Planning Commission and of book, and good luck to the author. The point, the ANC National Deployment Committee. however, is that inside a committee run by Gwede Mantashe, (the ANC’s new national The election of the ANC’s top decision-making chairperson), Cyril Ramaphosa and his new body, the NEC, resulted in it again being divided team agreed that it was better to keep Ace as 216 down the middle, as it had been under Zuma. Secretary General than it was to collapse the Three of the six new NEC members are Zuma conference and re-pantomime democracy. supporters. Ramaphosa will have to turn a blind

213. Jacques Pauw, The President’s keepers: Those keeping Zuma in power and out of prison (Tafelberg, Cape Town, 2017), pp 270-271. 214. “Zuma’s empire strikes back hard”, Business Day, 12 October 2016. 215. https://www.businesslive.co.za/bd/opinion/columnists/2017-12-20-steven-friedman-the-post-conference-anc-- same-party-with-new-wrinkles/. 216. https://www.businesslive.co.za/bd/opinion/columnists/2017-12-19-carol-paton-different-leader-and-different-faces- -but-same-top-six-split/. 217. https://mg.co.za/article/2017-12-15-south-africa-needs-electoral-reform-but-presidents-powers-need-watching. 60

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Ramaphosa is expected to be better than Zuma in Deals, deals, deals and deals. The final practicing a politics of mirrors, using rhetoric to alignment of the Top Six and the NEC tell the international business and policymaking constituencies what they want to hear, without was the result of deal-making, not an necessarily being able to fulfil his promises. Control elections process. We spent five days in Risks analyst Seamus Duggan rightly cautions: Nasrec watching an elaborate farce, The current succession politics are being a giant R6-million-a-day confidence portrayed as Cyril Ramaphosa and reformists game. What the fuck was the point of versus Nkosazana Dlamini-Zuma and traditionalists. The reality is the nature of any of this? Why not just work it out this succession battle is far more messy. The over Blue Label and cigars in Luthuli implications for business are not going to be as clear-cut as portrayed … While under House, and save us all the trouble? Ramaphosa we are likely to see a more pro- The ANC Electoral Conference was a scam. business approach from the ANC‚ he’s going to The policies that result from it – whether neo- struggle to implement this across his divided 220 liberal or radical – are scams. The Ramaphosa party. era will be defined by scammers colluding with scammers in order to further scam the people In addition, Zuma’s misgovernance and the theft of South Africa – and whether those scammers he sanctioned have created a series of crises and happen to be Cyril’s business buddies in political volatility that could take years to stabilize. Stellenbosch or Mabuza’s gangster pals in As stated by Susan Booysen: Dubai hardly matters anymore. Some good The “Cyril factor” is a useful addition to the may come to the people of South Africa purely mix – but effective action is all that will count by accident, and that must be welcomed. But at term’s end. Talk-talk has run out of steam can this divided, deal-drunk ANC really pull us for the ANC, both internationally and with from the mire?218 the South African electorate. More talk-plus- walk will be the benchmark after 25 years of Politics of mirrors and the potholed ANC rule. The Ramaphosa regime will circulation of elites be held to account substantively on its promise to “deepen transformation”.221 International media responses have been In fact, the ANC conference in December 2017 positive and many observers are more hopeful. announced a raft of quite radical policy decisions The German business newspaper Handelsblatt which seemed to favour the Dlamini-Zuma faction, commented: rather than the more moderate Ramaphosa side. It included changing the Constitution to legalise South Africa has until now been seen as being expropriation of land from whites to be given in steady decline. The financial markets are to blacks without compensation, nationalising now relying on the new leader of the African the South African Reserve Bank (now nominally National Congress, Cyril Ramaphosa. However, owned by private shareholders), and providing to see him as a magic healer would be naïve.219 free higher education to the poor.

218. https://www.dailymaverick.co.za/article/2017-12-21-trainspotter-the-ancs-54th-electoral-scamathon-is-finally- finally-over-and-the-fix-is-in/#.WmzEnbpFxjp. 219. http://www.handelsblatt.com/my/meinung/kommentare/hoffnungstraeger-bei-der-anc-suedafrika-braucht-den- neuanfang/20740012.html?ticket=ST-1526424-vgiP3HNpZccp9c4kVcKv-ap1. 220. https://www.businesslive.co.za/bd/politics/2017-02-28-analysts-put-their-money-on-cyril-ramaphosa-winning-anc- leadership-battle/. 221. https://www.dailymaverick.co.za/opinionista/2018-01-23-south-africas-complex-2018-transition-and-the-zumaist- occupation/#.WmyATKjibIV. 61

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For the time being, Ramaphosa will face a deeply of resources, and to prevent law enforcement divided party and deeply entrenched patronage investigations and court cases against his interests, networks. He has started to clean out certain allies and partners. ministries, agencies and state enterprises, removing key allies of Zuma. However, his support A new government will have to contain the inside the ANC remains uncertain and he has factional struggle within the security agencies. struggled to unite the party behind him. Different factions among the securocrats will try to find ways to make themselves equally Many of those in a Ramaphosa cabinet have been indispensable to a Ramaphosa government. They complicit in or quiet about the excesses of Zuma’s will be aided by the fact that Ramaphosa would time in office. This holds true even for Ramaphosa, have to deal with a rise in political unrest and who as deputy president only very belatedly protest, internal opponents from the Zuma camp criticized the nature and extent of corruption in ANC and state structures, as well as strong around Zuma.222 Retread politicians, previously challenges by opposition parties in the run-up to complicit in neopatrimonial politics under Mbeki the 2019 elections. or Zuma, will become part of new rounds of a circulation of the elites. “Different leader, different Ramaphosa would have to implement rigorous vision … same broken ANC merry-go-round” was changes in the SSA and military to remove the heading of Carol Paton’s analysis after the ANC staunch Zuma loyalists. However, some of the conference.223 securocrats are likely to try and use Ramaphosa’s selective anti-corruption campaigns to neutralize In January 2018, the twenty elected members both Ramaphosa’s political rivals and their own of the ANC’s National Working Committee bureaucratic rivals. (NWC) were announced. The NWC reflected the composition of the NEC, with a similar mix of Ramaphosa, who did not very actively oppose it Zuma and Ramaphosa loyalists, favouring the new in the past, will be unable to substantially reverse president. Some Zuma loyalists, such as Nomvula the politicization of the security agencies in future. Mokonyane, and , As Michael Bratton and Nicholas van der Walle also won seats on the NWC. Indeed, the defeated states, in neopatrimonial orders, parallel and presidential contender, Nkosazana Dlamini-Zuma, unofficial structures may well hold more power won the biggest vote on the committee. and authority than the formal administration.224 In the case of the ANC’s hybrid regime, such Security agencies to reposition structures are now involved in the turbulent factional struggles. themselves Partisan law enforcement actions? A key challenge for Ramaphosa will be the role of the security agencies during his rule. Zuma As the political scientist Dirk Kotze notes: as former intelligence head of the ANC had a particular preference for and competence in using the security agencies. They actively helped him Over the past 10 years the country’s in the past decade to maintain his grip on the criminal justice system has been factionalizing ANC, to contain domestic political opponents, to weaken the institutional checks exploited by the government to deal and balances that hindered his accumulation mainly with internal ANC factional

222. https://mg.co.za/article/2019-01-14-the-state-capture-spectacle-is-back. 223. https://www.businesslive.co.za/bd/opinion/columnists/2017-12-21-carol-paton-different-leader-different-vision-- same-broken-anc-merry-go-round/. 224. Michael Bratton and Nicholas van der Walle, Democratic experiments in Africa (Cambridge University Press, Cambridge, 1997), p 62.

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As Richard Calland states, this situation presents dynamics. The country’s Revenue Ramaphosa with an acute political dilemma, since Service, which also has investigative he has pledged to “rebuild unity” in the ANC:

and semi-judicial powers, has also been Hence, we are likely to see a very high level and drawn into these dynamics.225 multifaceted blame game. But any attempt to restore its credibility will probably prove However, in January 2018, some of the political counter-productive unless the party accepts brakes on investigations and prosecutions against that some of its biggest fish must be prosecuted the political allies and business partners of too.227 President Zuma and his family were removed. According to insiders, this was the result of Cyril Ramaphosa is also experiencing resistance and Ramaphosa’s victory at the ANC conference in counter-measures by his political opponents or December 2017. Unfortunately, these events embarassing developments. In her evidence to also confirmed to what extent the ANC as a party the into State Capture under dominates the formal structures of the state in Zuma, the former Public Enterprises Minister the one party dominant system. Barbara Hogan said that the ANC’s policy of cadre deployment, whereby appointments were made Carol Paton, deputy editor of Business Day, according to ANC membership, was counter- comments: productive.228 As deputy president and head of the ANC’s deployment committee, Ramaphosa Then comes the most damaging repeat of the was jointly responsible for those appointments. dynamic that has shaped ANC politics since Meanwhile, Khotso de Wee, the secretary of 2005 – the use of the justice system to settle the Zondo Commission into State Capture he scores among one another. Magashule will had appointed, has been put on leave pending probably be criminally implicated through investigation into claims that he was one of the the judicial commission of inquiry into state recipients of cash payments related to a tender capture. While this will not amount to abuse assigned to a subsidiary (Bosasa is a South of the justice system in the way Zuma used it African company specialising in providing services against Pravin Gordhan, it is very similar to to government, controversial for its involvement the attempts to prosecute Zuma for corruption in corruption allegations).229 while Thabo Mbeki was president. It is still up to investigative journalists to uncover Mbeki may well have been politically complicit the routes by which Ramaphosa, armed with only behind the scenes in urging the prosecution of political and trade union connections, became one Zuma. Ramaphosa might not be playing the of the richest men in South Africa upon leaving same political game. Assuming he allows the politics in 1997. Ramaphosa has also agreed to law to take its course, the ANC will once again repay a donation of R500 000 (US$36 000) made be in the thick of a conflict, with top officials to his election campaign in December 2017. The on opposite sides of the justice system. Just donation was made by a company which has been like the other problems it has – factionalism, the beneficiary of government projects. It also has entrenched patronage and corruption – there links to his son, Andile Ramaphosa. will be no avoiding the internecine conflict that the state-capture inquiry will bring.226

225. http://www.huffingtonpost.co.za/2018/01/27/is-south-africa-seeing-a-return-to-the-rule-of-law-more-evidence-is- needed_a_23345213/. 226. https://www.businesslive.co.za/bd/opinion/columnists/2017-12-21-carol-paton-different-leader-different-vision-- same-broken-anc-merry-go-round/. 227. https://mg.co.za/article/2018-01-22-is-the-net-about-to-close-on-zuma-and-his-gupta-patronage-network. 228. https://ewn.co.za/2018/11/12/barbara-hogan-anc-often-interfered-in-appointing-executives-at-soes. 229. https://www.news24.com/SouthAfrica/News/breaking-zondo-commission-secretary-implicated-in-bosasa- corruption-20190118; https://www.news24.com/Columnists/AdriaanBasson/is-this-why-bosasa-was-never- prosecuted-20190121. 63

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Cyril Ramaphosa initially told Parliament, in reply for provincial executives. By all accounts, to a question by Democratic Alliance (DA) leader he is systematically ensuring that provincial Mmusi Maimane, that the money had been paid executives are elected that will do the necessary into his son’s account, but later said that it had when the time comes to recall Ramaphosa after been paid by a logistics company, Bosasa, now the election. known as African Global Operations. The payment was made on behalf of former Bosasa CEO, Gavin Fourth, there is mounting evidence that key Watson. Correcting his earlier reply, Ramaphosa power brokers within the ANC are encouraging said he had inadvertently misled Parliament due the growth of smaller parties to ensure that to a lack of information about the payment. When the ANC’s electoral majority is less than it Maimane and EFF leader, Julius Malema, called achieved in the previous election when Zuma for a full investigation into all payments into his was the leader. In the crazy world of shifting election fund, Ramaphosa said he would repay opportunistic alliances, the EFF seems to the money and investigate all payments into the be playing ball – they consistently target election fund account. Ramaphosa and Pravin Gordhan with little to say about their old “pay back the money” Professor Mark Swilling recently noted the enemy, Jacob Zuma. following about the anti-Ramaphosa campaign inside the ANC: If successful, a reduced majority would allow Magashule’s ANC provincial executive First, there is a well-orchestrated campaign to committees to argue that contrary to the hype, restore Zuma’s image as the “man of the people” Ramaphosa has not been able to reverse the – including a pop song – who is prepared to electoral losses experienced during the Zuma lead the populist charge against poverty and years. The message will be simple: if the ANC is oppression, namely, “white monopoly capital”. in worse shape under Ramaphosa, why should he remain the leader? Second, Zuma has returned to his KwaZulu- Natal base where he knows how to use violence Fifth, there is sufficient anecdotal evidence and fear as a weapon to secure national power that the majority of ANC members do not positions – after all, this was why Nelson understand the true nature of State Capture. Mandela brought him into the NEC, and why Nor is there much grassroots support for the Thabo Mbeki had to bring him in close as Zondo Commission — many ANC members deputy president. would welcome its closure. Recent “leaks” seem to be about discrediting the Zondo When Zuma used that famous television Commission.230 interview before he resigned to subtly threaten increased violence if he was displaced, all he did then was to voice publicly what he’d A fluid transition always done within the secretive cloak-and- dagger world of ANC leadership struggles. The The anti-Zuma faction competing for access to KwaZulu-Natal youngsters who were sent to patronage and the faction against both Zuma and Moscow to be trained as assassins continue the politics of patronage succeeded in electing 231 to be very effective implementers of a low- Ramaphosa as ANC leader in December 2017. intensity reign of terror. However, one runs a risk in seeing the membership of factions as being fixed instead of being fluid. Third, in his capacity as ANC Secretary General, Opponents of a faction sometimes also use their Ace Magashule controls the election processes opposition to enforce new concessions and later

230. https://www.dailymaverick.co.za/opinionista/2019-01-21-the-zuma-power-elite-is-alive-kicking-and-preparing-to- replace-ramaphosa/. 231. http://businesstech.co.za/news/general/142598/how-zumas-faction-is-starting-to-unravel/. 64

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incorporation into the dominant faction. Some did in three major metros in the local elections of members of factions may be pushed out of a 2016. However, intimidation, threats of violence, faction or to the side and have to bide their time rehearsals for violence, violent protests, and to return to the inner circles. This will now also be even political assassinations form part of the the case for some people in the Zuma camp and new rules of the game, the incentive systems and the EFF, as the Ramaphosa camp becomes more the positioning of actors in dealing with political powerful. claims, counter-claims and contestation. This non-democratic tenor had even been noticeable Selective anti-corruption campaigns under during the transition of leadership in the ANC, Ramaphosa will continue, especially aimed at when there had been talk of the risk of conflict removing the support bases of Zuma. Zuma-ist and civil war if the Zuma faction were not to have networks, still intent on ensuring that Ramaphosa been dealt with respectfully.234 has a one-term presidency, will be attempting to limit Ramaphosa’s ability to stamp his authority The institutions established with a view on the whole ANC.232 However, the interaction to a separation of powers and democratic between strong non-accountable forces and weak accountability have proven to be too weak to democratic institutions will continue to shape prevent the massive plundering of state resources politics. The major political dynamics will continue by ANC networks and policies of patronage.235 to be that of a flexible and possibly reformed Politics among the ANC’s core constituencies hybrid regime. have also clearly shifted towards more demands for redistributionism and selective (non-material) Weakened democratic institutions de-Westernization. Protest politics by poor communities and militant youth politics have become quite prominent. Simone Schotte of Whoever becomes president after the 2019 GIGA found significant discrepancies in attitudes election, will be governing a state that is a far towards democracy between the downwardly and cry from the new political system in 1994. The upwardly mobile strata of the black middle class, population has expanded by more than 20%, but which she terms the “anxious” and the “climbers,” the capabilities of the state apparatus have not respectively. kept up with their demands. During one-party- dominance over decades, the locus of politics has On the one hand, the “climbers” show the shifted from accountable democratic institutions highest generic support for democracy as a to a field of power in which weak democratic form of government, whereas the “anxious” institutions and non-democratic institutions middle class displays feelings of resignation. interact. Neopatrimonial dynamics dominate On the other hand, I find indicative evidence of much bigger parts of the state institutions. From a status‐quo bias among the “climbers”. Rather 2013 to 2017, the high point of Zuma’s misrule than assuming a more demanding or critical and corruption, Cyril Ramaphosa was both stance in politics, they allow their political Zuma’s deputy president and the chair of the priorities to be at least partly shaped byan ANC’s NDC in charge of cadre deployment.233 interest in securing and expanding attained Party cadre deployment and a non-pluralist living standards; being upwardly mobile is political culture now permeate state institutions. even associated with a higher tolerance for Elections still occur and the ANC has learnt that government attempts to constrain freedom of it can be vulnerable and lose its dominance, as it information, opinion, or expression.236

232. Also see Susan Booysen, Dominance and decline: The ANC in the time of Zuma (Wits University Press, Johannesburg, 2015), p 37. 233. https://www.politicsweb.co.za/opinion/cadre-deployment-ber-alles. 234. http://www.huffingtonpost.co.za/2018/02/04/inside-the-transition-what-zumas-team-is-thinking_a_23352517/. 235. For a general overview, see Jacques Pauw, The President’s keepers: Those keeping Zuma in power and out of prison (Tafelberg, Cape Town, 2017). 236. https://www.giga-hamburg.de/de/publication/ambivalent-attitudes-towards-democracy-among-south-africas- middle-class. 65

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At the end of July 2018, Cyril Ramaphosa addressed hearings and processes on the necessity of such the nation as ANC president on state television in an amendment process remained under way. The what is traditionally a slot reserved for the head moment captured the continuance of a one-party of state, against the backdrop of two ANC flags. dominant hybrid regime.237 He announced that the ANC had decided that there would be a constitutional amendment to “clarify” expropriation without compensation and that the party would finalize the amendment. This occurred while the parliamentary public

237. https://www.dailymaverick.co.za/article/2018-08-01-political-brinkmanship-vs-governance-ramaphosas-move-to- amend-sa-constitution-kickstarts-2019-elections-season/.

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Part VI The legislature, elections and violent politics

A one-party dominant state The ANC’s NEC has tremendous power over elected MPs. The system of closed-list proportional representation assigns legislative seats to Strict enforcement of ANC party discipline against candidates based on their relative position on a ANC MPs has weakened national legislative party list, and the NEC draws up the ANC’s party oversight of the executive. Formally, legislative list. Even elected MPs can be redeployed by the authority is vested in Parliament, but in practice ANC’s NEC and replaced by another ANC cadre. its role has been reduced to approving bills drafted The non-parliamentary wing of the ANC dominates by the ANC-led executive. Behind the formal the parliamentary wing.238 structures and processes, cadre deployment and the party rule.

238. Soujit Choudry, “‘He had a mandate’: The South African Constitutional Court and the African National Congress in a dominant party democracy” (2010), at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1651332, pp 17-18, 33-35. 67

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Unelected party functionaries thus set the national The events in Parliament were one signal among government’s policy priorities. The public officials many that the ANC’s dominance during five subject to electoral accountability tend to be national elections had eroded the checks on subordinated to unelected party functionaries.239 power created by the Constitution, as well as Politics are pulled out of the elected legislature Parliament’s oversight role. The securitization of into the party and into processes that lie outside of Parliament during the past few years aimed to Parliament. Politicians do not need to comply with inhibit a vigorous questioning of President Zuma the same norms of transparency, participation by opposition parties.242 and accountability. During Zuma’s two terms, ANC parliamentarians had clearly been unable The 2016 to 2019 SONAs saw increased police to provide effective legislative oversight of the presence in the parliamentary precinct and a executive or the ANC. The overall situation is larger contingent of the in-house security.243 On unlikely to change during Ramaphosa’s rule in the 29 September 2016, the South African Supreme next few years. Court of Appeal ruled that the security forces’ jamming of cell phones and limiting of the A political culture of impunity broadcasting of proceedings during the 2015 SONA in Parliament was unconstitutional and unlawful.244 During the SONAs of 2018 and 2019, As explained above, specific ANC policies like delivered by Ramaphosa, however, such forms of “democratic centralism” and cadre deployment securitization was not apparent. by the party to national and provincial executives and legislatures have weakened the separation of powers. During Zuma’s second term as president, The non-alternation of power in a Ramaphosa himself chaired the ANC NDC (since hybrid regime 2014). The deployment of ANC officials that participated in corrupt practices happened on his watch.240 According to political scientists, democratic consolidation entails not only compliance with Also in Parliament, Ramaphosa never supported the framework of electoral democracy for political competition, but also at least one electoral loss, the many opposition party attempts to hold 245 President Zuma accountable. In 2014 and coupled with a transfer of power. Political 2015, critical opposition parliamentarians were competition, including a viable opposition and the physically removed from parliamentary sessions credible possibility that an election may remove at the behest of the ANC leaders, whose MPs a party from office, lowers the risk of a governing formed the majority in Parliament. This lead party abusing its power. the liberal former editor of the Rand Daily Mail, Allister Sparks, to comment: “This is outrageous. This is no longer democracy”.241

239. William Mervin Gumede, Thabo Mbeki and the battle for the soul of the ANC (Zebra Press, Cape Town, 2005), p 272. 240. https://mg.co.za/article/2019-01-14-the-state-capture-spectacle-is-back. 241. “South African Parliament in Disarray as ANC Protects Zuma”, Bloomberg, 30 September 2014; “Chaos linked to Zuma’s plan to flex ANC muscles in parliament”,Reuters , 16 November 2014; “Parliament Diary: Scenes of Shame”, Daily Maverick, 14 November 2014. 242. http://www.dailymaverick.co.za/article/2015-04-06-op-ed-party-loyalty-patronage-and-the-future-of-the-south- african-parliament/#.VXbwE8sR672. 243. https://www.dailymaverick.co.za/article/2017-02-13-sonamustfall-dont-normalise-zumas-security-creep/#.Wmo- uqjibIW; https://www.news24.com/Columnists/Pieter_du_Toit/barricades-alsatians-and-fences-sona-shows-up-a- party-and-government-afraid-of-its-people-20190210. 244. http://allafrica.com/view/group/main/main/id/00046248.html. 245. Adam Przeworski, Michael Alvarez, Jose Antonio Cheibub and Fernando Limongi, Democracy and development: Political institutions and well-being in the world, 1950-1990 (Cambridge University Press, Cambridge, 2000); Kenneth Greene, Why dominant parties lose: Mexico’s democratization in comparative perspective(Cambridge University Press, Cambridge, 2007). 68

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ANC statements and actions do not reflect an benefited least from the power transition in 1994 appreciation that without the viable option of may continue to support the ANC in the hope that alternation, a substantial democracy does not the ANC will finally deliver to them. Those who exist. They rather project a sense of entitlement have benefited most, seem most likely to drive to never-ending rule, based on the ANC’s history political change. of armed struggle against the previous political order. This approach reflects the non-pluralist His explanation is twofold: increases in service political culture described.246 delivery appear to heighten citizens’ awareness of, and exposure to, corruption. Those places in which However, many voters from largely black and there is the greatest improvement in services, are poorer communities also feel excluded from also the places in which local politicians self-enrich existing forms of ANC patronage. Many of the most. Secondly, increases in service delivery them turned to protests as a form of political appear to change voter expectations, ratcheting participation, often in conjunction with voting them upward. Once voters are provided with support for the ANC. They vote for the ANC basic services, they may alter their expectations during elections, while their protests constitute and demands of government, seeking out political participation and competition between alternative parties. This could occur either elections over access to positions, resources through changing needs and desires, or through and opportunities.247 Sometimes, such protests revised understandings of government capacity.251 interlink with parallel systems of governance and As such, they have become part of the politics of criminal networks.248 a hybrid regime.

There had been more protests in 2018 than Factional struggles within the ANC and between in any other year since 2005. Municipal IQ‚ a the ANC and opposition groups will continue to specialised local government data and intelligence generate political turbulence in the next few years. organisation‚ recorded 237 protests against Urban and rural invasions and urban protests municipalities across the country in 2018. In 2014, due to overheated expectations are expected to a general election year, protests were significantly continue to remain prominent in the run-up to the higher, and this may again be the case before 2019 elections.252 The risk of local flashpoints of 2019’s elections.249 While 50% of the lower intergroup tensions, mediatized and abused for number of protests in 2007 involved violence, political agitation, has also risen in many towns more protests have since involved violence. The and townships. Violent scapegoat politics during policing of protests appears to add another layer such protests, aimed against African foreigners of violence between communities and authority or different indigenous cultural communities, will figures.250 remain real during the next few years. The protests signal alternative ways of The national elections of 2014 empowerment, voicing disagreement and bargaining. Evan Lieberman, professor in African Politics at the Massachusetts Institute of Elections in South Africa have occurred within Technology (MIT), has found that those who have the context of a one-party dominant state for the

246. Stephen Ellis, External mission: The ANC in exile, 1960-1990 (Hurst, London, 2012), pp 298-299, 301-302. 247. http://www.issafrica.org/crimehub/public-violence. 248. Susan Booysen, Dominance and decline: The ANC in the time of Zuma (Wits University Press, Johannesburg, 2015), pp 267, 274. 249. https://www.businesslive.co.za/bd/national/2019-01-16-more-protests-in-2018-than-in-the-last-13-years/. 250. http://www.municipaliq.co.za/publications/press/201710241012397864.pdf. 251. https://www.washingtonpost.com/news/monkey-cage/wp/2015/11/10/in-south-africa-voters-do-not-reward-good- service/. 252. https://www.reuters.com/article/us-safrica-land-cities/south-africas-cities-hold-key-to-ramaphosas-land-plan- idUSKCN1J0145; https://ewn.co.za/2018/07/25/reports-of-intimidation-threats-add-to-tensions-in-zwelihle.

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past 25 years. Furthermore, pockets of citizens rendered to them by the Department of Social live comfortably, while the majority are relatively Development in collaboration with other poor and a large percentage of the population is departments, such as health and education. … unemployed. Nicola de Jager, a political scientist [R]ational behaviour under these perilous and at the University of Stellenbosch, states: precarious conditions means that people hold on to what they have and the best way of doing In such an environment, the incumbent’s that is keeping the ANC in power. In this way, the ability to create jobs, issue tenders, pay for ANC uses the economic needs and anxieties of advertisements, determine economic policy poor people to influence their voting patterns. and otherwise influence the movement of resources is a pronounced advantage ... In South CASE’s research shows that the ANC uses Africa, the ANC gains an important advantage strategies that go beyond the charm offensive between elections, as it has the lion’s share of when engaging with the poor electorate that public funds, access to private funding through makes up its support base during campaigning party-owned businesses and reaps the rewards periods … It does this, in the short term, of cadre deployment within government. In this by engaging in disinformation, such as context, elections might be free, but declaring threatening to stop social security grants and them to be fair becomes problematic.253 linking government social security delivery to the provision of services by a political party. Moreover, efforts to use a combination of Government services are delivered to the poor mobilization, patronage and intimidation usually in a manner that strengthens the ANC’s political proceed long before election monitors take to the party support. field. The Western Cape and Gauteng are the only two provinces in South Africa where more than The ANC also displays its power and strength two-thirds of households earn salaries as their in an intimidating manner using huge numbers main sources of income. In the rest of the country, of its supporters to induce a sense of fear households rely significantly on grants to get and anxiety among the poor electorate. by.254 The Community Agency for Social Enquiry This is apart from engaging in direct acts of (CASE) did field research into the voting of the intimidation, such as controlling campaigning poor before the 2014 national elections. CASE’s venues and organising marches to disrupt research points to the increasingly transactional opposition political parties. These big brother nature of voting in South Africa, where votes bullying tactics target opposing political party become a transaction currency: a means of buying supporters.256 goods and services from a political elite, and not just an expression of confidence in the inherent In December 2015 the Constitutional Court ruled capabilities of a particular party or leader.255 that the Independent Electoral Commission (IEC) had endorsed rigged local elections two years According to Mohamed Motale, CASE’s director, earlier.257 According to the liberal IRR, during the the ANC uses the economic needs and anxieties 2014 elections there had been a 160% turnout for of poor people to influence their voting patterns: those aged 80 and older.258 It remains to be seen to what extent the ANC will use such approaches The only lifeline that poor households have, during the national elections in May 2019. are social security grants and the services

253. Nicola de Jager, Why elections in Botswana and South Africa can be ‘free’ but not ‘fair’ at http://democracyinafrica. org/elections-bostwana-south-africa-can-free-fair/. 254. http://www.fin24.com/Economy/only-gauteng-western-cape-dont-rely-on-grants-for-income-20160602. 255. http://allafrica.com/stories/201405010719.html. 256. http://www.iol.co.za/pretoria-news/opinion/why-the-poor-still-vote-anc-1.1680612#.U4iaRmeKDre. Also see http://www. issafrica.org/iss-today/sa-elections-what-does-the-electoral-code-of-conduct-say-about-the-abuse-of-state-resources. 257. http://www.sabc.co.za/news/a/8c142b804d21ca148856ea93fd523eaa/Opposition-parties-feel-vindicated-by-court- judgment-20161406; https://www.enca.com/south-africa/concourt-finds-tlokwe-elections-were-not-free-and-fair. 258. R.W. Johnson, How long will South Africa survive? The looming crisis (Jonathan Ball Publishers, Cape Town, 2015), pp 144-145. 70

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A hybrid regime resting on 35% of for the ANC decreased to 35%, continuing the steady decrease since its peak at 54% in 1994.261 eligible voters?259 According to estimates, more than 750 000 The ANC gained the support of about 35% of the black voters did not vote for the ANC, but for eligible voters in the 2014 national elections. The the opposition DA.262 Most voters among ethnic group who did not vote was the single biggest constituencies like the Asians, Afrikaners, English- group, namely 43%. The shrinking base of actual speaking whites and coloureds supported voter support also reflects how the locus of politics opposition parties. has shifted from democratic institutions tothe zone of interaction between democratic and non- However, the ANC used political mobilization and democratic institutions of a hybrid regime. The patronage in rural areas to compensate for some elections now interact with the non-democratic losses in urban areas.263 During the campaign, institutions of the hybrid regime. the KwaZulu-Natal MEC, Meshack Radebe, stated that social grants are only for “ANC supporters”.264 Among the 57% of eligible voters that did vote Actual physical violence was not widespread in 2014, the ANC won decisively with 62.2% of enough to have significantly influenced the the national vote.260 The largest opposition party, outcome of the national elections, but it made a the liberal DA, secured 22.2% of the vote. The difference at local levels. In the six months leading newcomer, the socialist EFF, established itself as up to the election on 7 May 2014, 76 incidents the third-largest political party nationally with of election-related violence had taken place. 6.4% of the vote. The other 29 political parties Of these, two-thirds turned violent. Where the that contested the national elections shared the political affiliation of perpetrators was known, remaining 9.2%. the main perpetrating party was the ANC (52%), followed by the EFF (26%).265 Hertzberg comments: Local elections The turnout of registered voters in the 2014 elections was 73% … When the turnout is The ANC engaged in a “black operations” examined as a proportion of the eligible voting- manoeuvre to influence public opinion during the age population turnout over 20 years, the local elections of 2016. A covert operations room figures confirm a decline in participation from was set up on behalf of the ANC with a planned 86% in 1994 to 72% in 1999 and 58% in 2004. budget of R50-million to pay people to create Only in 2009 was there a slight rise to 60%, false narratives favouring the ANC and targeting but this was again followed by a drop to 57% opposition parties. This included printing fake in the 2014 elections. It appears that there is opposition posters, which is in violation of the an increasing number of eligible South African Municipal Electoral Act and the Election Code of voters who do not cast a vote. Conduct. The story broke when public relations consultant Sihle Bolani, who worked on this covert The ANC’s share of the vote declined from 70% campaign, brought a case against the ANC for non- in 2004 to the lowest percentage yet … As a payment. Bolani had secretly recorded meetings result, the proportion of eligible voters voting with ANC officials at the party headquarters in

259. http://www.issafrica.org/voter-participation-in-the-south-african-elections-of-2014. 260. By 2015, many supporters considered the ANC to be underperforming regarding crime, corruption and job-creation. See http://mg.co.za/article/2015-05-21-even-anc-voters-say-the-ruling-party-is-performing-badly#.VWCZFCQrV0M. 261. http://www.issafrica.org/voter-participation-in-the-south-african-elections-of-2014. 262. “DA hails growth among black voters”, eNCA, 9 May 2014. 263. http://uk.reuters.com/article/2014/05/04/uk-safrica-election-zulus-idUKKBN0DK04P20140504. 264. http://www.issafrica.org/iss-today/sa-elections-what-does-the-electoral-code-of-conduct-say-about-the-abuse-of- state-resources; http://www.issafrica.org/iss-today/taking-the-i-out-of-iec. 265. http://issafrica.org/iss-today/what-does-increasing-political-violence-mean-for-the-future-of-south-africas- democracy. 71

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Albert Luthuli House. The recordings implicate ANC to remain in power beyond 2019 the ANC’s general manager Ignatius Jacobs in directing the campaign to take a “dig at [the ANC’s] opponents” and also confirmed that R50-million About 3.3 million people who usually vote ANC during national elections, chose neither to vote was the targeted budget for the campaign.266 for the DA nor the EFF – not even as protest The results of the local or municipal elections of 3 options. This suggest that they are available to the August 2016 constituted the worst performance ANC first. This trend of more votes during national by the ANC since 1994. The ANC obtained 53.9% of elections than during municipal elections has been the total vote, followed by the official opposition, a constant in ANC election voting patterns. In 2004, the DA, with 26.9% and EFF with 8.2%. The ANC lost as in 2009, there were more than 3 million votes its majority in the capital, Pretoria, the industrial not cast for the ANC in local elections, compared hub of Johannesburg, and the southern port city to national elections. The ANC should be able to of Nelson Mandela Bay (Port Elizabeth). The ANC safely win, even with a smaller majority, in the now has an absolute majority in just three of the national elections of 2019: the condition is that eight main metropolitan areas, down from seven the almost 3 million voters who did not vote in the local elections do what they usually do during in 2011. The ANC’s percentage of support has 268 always been smaller in the demographically more national elections, namely to vote again. diverse metropolitan areas. The swing was due to three factors: a small growth in DA support in The results of the local elections in 2016 removed predominantly black wards; slightly larger but still major potential sources of patronage from ANC small growth in support for the EFF; and the large control, including large portions of the R287 number of traditional ANC voters in townships billion local government operating budget and who did not vote. the R57 billion local government capital budget. The ANC’s outright control of local government The ANC continues to dominate the 205 smaller operating budgets has declined from 82% in 2011 councils of towns and rural areas, where many to just less than 42% in 2016. Its outright control of local government capital budgets declined residents depend on government services and 269 grants. However, also in these areas, there was from nearly 83% in 2011 to about 45% in 2016. some swing away from the ANC. It grew only in After the local elections, Zuma continued to KwaZulu-Natal and by a meagre 1% at that, but focus on consolidating his power and patronage machine, also among key provincial and rural 24% of all of the ANC’s votes came from the 270 province. The IFP surged to 18.29% in the province. constituencies. Nationally, in the smaller cities and towns, a low turnout combined with a stronger showing by The ANC is entering the national elections as the firm favourite to win and to continue its one-party the EFF was mainly responsible for the ANC’s 271 decline. Still, as political analyst Johnny Steinberg dominance of the hybrid regime. As Professor has stated, in provincial South Africa, there is only Susan Booysen commented in January 2019: one game in town – the public sector – and it is controlled by the ANC.267 For the ANC to garner enough votes to get an outright electoral majority, it needs to persuade voters that it is a new ANC, which encapsulates

266. https://citizen.co.za/lifestyle/1411143/everything-need-know-war-room-whistleblower-sihle-bolani/. 267. http://www.businesslive.co.za/bd/opinion/columnists/2016-04-01-in-small-towns-survival-rests-on-ruling-party/. 268. http://www.dailymaverick.co.za/opinionista/2016-08-10-steven-sidley-this-is-what-the-numbers-actually-say/#. V64XeZUw_IV. 269. http://www.bdlive.co.za/opinion/2016/08/17/big-money-is-at-stake-if-the-governance-of-metros-flounders. 270. http://www.dailymaverick.co.za/article/2016-08-24-hazard-ahead-anc-wounded-zuma-unpredictable-gordhan- targeted/#.V8G4vI9OJjq. 271. https://www.dailymaverick.co.za/article/2018-11-04-the-divided-and-fragmented-house-that-is-the-anc-as-it- approaches-elections-2019/. 72

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“hope and renewal” (Ramaphosa’s manifest fall short of persuading a cynical electorate. phrase). Again, the evidence was spread thinly. The electorate’s frequent blind belief in the Voters see Zuma (no criminal convictions, but ANC’s liberation movement credentials (in this with an unequalled record of circumventing organisation being virtuous party-politically) court appearances), along with a host of has been countered both by the Zuma years corruption-implicated others, on campaign and the tepid Ramaphosa takeover. On grounds stages and candidate lists, even on the list for of systematic, rational evaluation by the statesman presidential advisers, in the name of electorate, the ANC is not tipping the scales. “unity” … the sacrosanct mission in the 2017- Its hope lies in the electorate being persuaded, 2019 quest to survive Elections 2019. To fuel again, to suspend disbelief. 272 popular flames of disbelief Zuma proxy parties are spewed out, while Zuma tweets beguilingly Political assassinations in a hybrid – and sabotages crudely the hope-and-renewal message. regime

These factors bear on leadership, and also cast National and provincial factionalism will permeate shadows on the ANC’s credibility in persuading the selection of candidates and the allocation of the electorate that this is a united, new ANC, pre-election patronage. Apart from patronage, a party of reconstituted identity, worthy of political intimidation also shape local and trust, able to renew and forge anti-corruption provincial politics, sometimes in the form of in government. In the week of the campaign political assassinations. Before, during and after launch, the electorate was watching from the the August 2016 local elections, at least twenty wings while senior ANC functionaries on the political candidates had been assassinated.273 ground worked to counter flare-ups of the anti- Already in August 2013, Raymond Suttner, a Ramaphosa fires. Pro-Zuma chants and the lawyer and honorary professor at the University need for NEC members to sidestep obstructionist of the Witwatersrand, as well as a former ANC regional structures in the province illustrated activist and political prisoner, stated: the persistent obstacles.

The ANC manifesto gives reasonable evidence (W)holesale assassinations have of some progress in putting across a coherent become a regularised way of deciding on ideological and policy message. There is concerted attention to rebuilding the economy, leadership and access to wealth within in trying conditions, creating skills and the ANC and its allies.274 opportunities for a more inclusive economy that is designed to take care of the poor and Motives for other political killings have included marginalised (albeit in many cases in the long, the silencing of whistleblowers revealing very long, term). Ambiguities leap off the pages, corruption in the ANC or civil service, the targeting but there is evidence that Ramaphosa’s vision of political opponents, or competition for is being carried forward, largely, by the diverse positions in the ANC or civil service that provide and factional National Executive Committee. access to public funds and cash from firms eager to buy political influence.275 The trend seems at Thus, on the three fronts of policy-ideology, the present to be largely concentrated in northern ANC organisationally, and the ANC in its ability provinces, especially KwaZulu-Natal, but also in to govern, there are mixed messages that may North West, Mpumalanga and the Eastern Cape.

272. https://www.dailymaverick.co.za/opinionista/2019-01-15-elections-the-anc-and-the-suspension-of-disbelief/. 273. http://mg.co.za/article/2016-08-05-00-whether-the-councillor-candidate-is-dead-or-alive-we-still-want-your-vote. 274. http://raymondsuttner.com/2013/08/18/raymond-suttner-government-and-tripartite-alliance-no-pitch-at-marikana- memorial/. 275. http://www.issafrica.org/crimehub/policy-brief/political-killings-in-south-africa-the-ultimate-intimidation. 73

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Political killings have also occurred in Gauteng and council is always a life-and-death issue.” That in the Western Cape provinces. is a stunning admission. For all the pretence the ANC regularly offers up of South Africa as a A climate of fear modern, progressive constitutional democracy, it is in truth a far more crude and violent affair. The ANC, which is neither a revolutionary A few provincial cabinet members and senior ANC movement nor a traditional political party, officials have been suspected of or involved in remains caught between the world of armed such killings. Moss Phakoe, an ANC councillor and struggle and formal democracy. A culture whistleblower, was assassinated in March 2009. He of assassination has inculcated itself into its had tried to use ANC channels to report corruption internal political dynamics. At local government and after his death, a dossier with evidence he had level, democratic choice and death often sit side compiled mysteriously disappeared. When police by side. That is not a picture well-illustrated by raided the home of , the former the media. It is remarkable how little sustained head of Crime Intelligence, the dossier was found. and meaningful attention this aspect of South As Shaw states, this raises serious questions African politics receives.279 about the connections between local-government assassinations and the interests of provincial and national government politicians.276 Threats to provincial and national

In 2016, Neo Moepi, previously the spokesperson politicians too for , the chairperson of the National Council of Provinces, said that he had to watch his To date, political assassinations have largely back. “It’s not just me; everyone in this province affected local politicians, even if there may have is scared”. David Mabuza, Mpumalanga province’s been involvement by politicians at a higher premier, and the new ANC vice-president, himself level. However, in the past years, there had been survived an alleged poisoning attempt in 2015.277 reports of provincial and national politicians fearing attacks. Reports have emerged of one In July 2017, ANC presidential hopeful Mathews of President Jacob Zuma’s four wives being 280 Phosa warned that the vote of no confidence implicated in a plot to poison him in June 2014. against Zuma had the potential to endanger Alleged assassination plots against former the lives of some MPs who are suspected to be North West Premier Supra Mahumapelo of the preparing to vote against party wishes. Phosa said ANC and SACP leader have 281 there had already been ANC corpses due to the emerged. Allegations of involvement in political power struggles and political killings in areas such assassinations also continue to dog Deputy 282 as KwaZulu-Natal, Mpumalanga, North West and, President David Mabuza. more recently, the Eastern Cape.278 To date, the Ramaphosa presidency has not Analyst Gareth van Onselen commented earlier: changed this situation, nor is it expected that he will be able to easily curb these trends among In response to one apparent assassination, a strongly-factionalised ANC in which historical ANC general secretary Gwede Mantashe said: involvement, mindsets and practices involving “The reality is that selection of candidates for intimidation and violence in pursuing political

276. Mark Shaw, Hitmen for hire: Exposing South Africa’s underworld (Jonathan Ball, Cape Town, 2017), pp 167. 277. https://www.sowetanlive.co.za/news/2016-01-27-i-was-poisoned-mpumalanga-premier-david-mabuza/. 278. https://www.news24.com/SouthAfrica/News/zuma-is-sas-worst-president-since-democracy-20170729. 279. Gareth van Onselen, “Corpses pile up in ANC power struggle”, Business Day, 29 February 2016. 280. http://www.timeslive.co.za/sundaytimes/stnews/2016/11/13/Dramatic-sequel-to-Zuma-poison-plot-as-Abrahams- warns-MaNtuli-Youre-still-a-suspect. 281. http://ewn.co.za/2018/05/06/hawks-confirm-probe-into-supra-mahumapelo-assassination-plot; http://www. sabcnews.com/sabcnews/sacp-alleges-blade-nzimandes-life-is-at-risk/. 282. https://www.enca.com/south-africa/who-is-david-mabuza. 74

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aims, still are prevalent at leadership and supporter Political analyst Protas Madlala commented: levels. In November 2018, Kimi Makwetu, the auditor general (AG) warned Parliament to expect The ANC should not look outside, because the an upsurge in violent crimes against members problem is within the party. They should not of the AG team as they traverse the country blame anyone but themselves. The question we finalising local government audits. Past examples should be asking is why this is not happening in included hijackings, death threats, hostage- the DA. It is only happening in the ruling party. taking, threatening phone calls and actual attacks The answer is there for everyone to see. The on auditors’ cars and auditors.283 people killed all had common denominator: they were all against corruption.286 Factional infighting, sometimes involving intimidation and political assassinations, will intensify in the run-up to the national elections In order to get the support from key provinces, in 2019. According to Mark Shaw, if assassination Ramaphosa as new ANC leader and the state has utility at the local level as a form of political president in 2019 will have to make deals with control, this may eventually also apply higher up provincial leaders who are corrupt, and perhaps in the political system.284 even are implicated in political killings in their areas. The same dilemma will be faced by The New York Times of 30 September 2018 international companies trying to conclude major published a report headed “Hit Men and Power: deals in South Africa. South Africa’s Leaders Are Killing One Another” and stating that “the recent increase in killings inside the ANC is a potent reminder of how far the party has strayed from creating, in the ashes of apartheid, a political order based on the rule of law”. 285

283. https://www.dailymaverick.co.za/article/2018-11-29-mounting-violent-attacks-on-state-auditors-a-crime-against- the-state/. 284. Mark Shaw, Hitmen for hire: Exposing South Africa’s underworld (Jonathan Ball, Cape Town, 2017), pp 175-176, 203- 204. 285. https://www.nytimes.com/2018/09/30/world/africa/south-africa-anc-killings.html. 286. https://www.iol.co.za/news/politics/anc-has-itself-to-blame-for-political-killings-18631772. 75

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Part VII The role of politicized security services

The dynamics of the South African security forces but also in Angola, Mozambique, Namibia and can currently only be understood in the context Zimbabwe: of a new hybrid system, not by reference to a full multiparty democracy. In the one-party dominant The form of democracy practised has been system, the ruling ANC, previously involved in a unable to dislodge the liberation parties in any guerrilla war (1960-1990), is still permeated by a of these countries. Instead, they have formed conspiratorial mind-set.287 There is a perception dominant-party-systems based on a de facto among some analysts and NGOs that while one-party rule. A key feature determining the elections may occur every five years, politics have political culture in all these states in various acquired a non-democratic tenor. Henning Melber degrees is the consistent use of structural of the Dag Hammarskjöld Foundation writes with violence to repress and disenfranchise political reference to the government in South Africa, opponents in order to retain power.288

287. See Stephen Ellis, External mission: The ANC in exile, 1960-1990 (Hurst, London, 2012). 288. Henning Melber, Liberation movements as governments: Democratic authoritarianism in former settler colonies of Southern Africa (Basler Afrika Bibiographien, Basel, Working Paper 1, 2013), p 3.

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Melber sees a lack of checks and balances, during a guerrilla struggle; the impact of cadre practices of exclusion and rule by law (as law of deployment on the leadership of the security the rulers) instead of rule of law, and control over forces; the increased prominence of the security agencies supposedly tasked to act independently cluster in decision making; and the wave of from the governing bodies and political authorities, militant strikes and service delivery protests often as among the manifestations of structurally linked to factional politics. embedded violence under these parties: “Their equation that the party is the government and the Ronnie Kasrils, a founding member of Umkhonto government is the state translates into a specific we Sizwe (MK) and former minister of Intelligence form of authoritarian rule”.289 (2004-2008), stated in 2011:

My experience as intelligence minister was that Securitizing politics the security and intelligence community were hopelessly politicised. This was made worse Zuma spent most of his time in exile in the by a culture of secrecy, paranoia, conspiracy ANC intelligence structures. He was the head theory and authoritarianism. The Protection of counter-intelligence, but he also retained a of Information legislation is an illustration of distinctive intelligence network in the ANC. This this. My impression is that it has more to do network and other allies allowed him to outwit with concealing graft and corruption in high Thabo Mbeki in the ANC leadership contest in places than with national security. Note its 2007.290 According to Professor Jane Duncan, obsession with threats that would emanate following “a bruising succession battle” inside from whistleblowers and the media with the ruling ANC to replace President Thabo Mbeki exceptionally heavy sentences.294 in 2008, “we saw the abuse of the intelligence services in order to advantage one or the other In 2014, Kasrils already stated that the intelligence political faction”.291 service had become a tool for the ruling party, and that officers were increasingly working for the ANC The political heads of the security services were key rather than for the state. However, under Zuma, actors of Zuma’s administration.292 The minister of the ANC executive did not act upon a report he Defence, the chief of the SAPS, the minister of State had tabled in 2008 to improve the state of affairs: Security and the head of National Intelligence, the so-called “security cluster”, became difficult to call I blew the whistle and I figured out that there to account by Parliament.293 were (intelligence) agents, that there were officers who were not working for the state but Several factors have combined to securitize were doing ... (work) for Luthuli House … They politics and will continue to do so: some of these don’t want to know anything about that report are the ANC’s non-pluralist political culture; the because they want the intelligence service to be mind-set among many of its key leaders formed a tool of Luthuli House and of the president.295

289. Henning Melber, Liberation movements as governments: Democratic authoritarianism in former settler colonies of Southern Africa (Basler Afrika Bibiographien, Basel, Working Paper 1, 2013), p 9. 290. Jacques Pauw, The President’s keepers: Those keeping Zuma in power and out of prison (Tafelberg, Cape Town, 2017), pp 73-75. 291. http://www.aljazeera.com/blogs/africa/2015/02/battle-intelligence-south-africa-ssa-spy-cables-guardian- security-150224170928946.html. Also see http://mg.co.za/article/2015-05-14-rogue-sars-unit-spied-for-zuma. 292. http://mg.co.za/article/2011-12-02-arms-deal-bell-was-deaf-to-bribes-and-lost-out; http://mg.co.za/specialreport/ the-arms-deal; http://www.armsdeal-vpo.co.za/articles04/told_you_so.html; Paul Holden and Hennie van Vuuren, The devil in the detail: How the arms deal changed everything (Jonathan Ball, Johannesburg, 2011); Andrew Feinstein, After the party: Corruption, the ANC and South Africa’s uncertain future (Verso, London, 2009). 293. http://www.academia.edu/1798769/Voice_political_mobilisation_and_repression_under_Jacob _Zuma; http:// www.dailymaverick.co.za/article/2011-06-16-jane-duncan-on-the-ever-increasing-menace-of-sas-security-cabal. 294. “Q&A with Ronnie Kasrils”, Amandla, 21 October 2011, pp 8-9. 295. http://www.iol.co.za/news/politics/intelligence-service-an-anc-tool-kasrils-1.1676525#.U4id-GeKDrc. 77

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Before the April 2014 national elections, news According to Nathan, the intelligence community emerged about a group of former intelligence is involved in unlawful political activity, and some officers working from the eleventh floor of members of the ANC are using the intelligence ANC Headquarters at Luthuli House to screen services to gather intelligence for political ANC parliamentary and provincial candidates. purposes. “Based on the evidence, they are It was headed by Thabo Kubu, who worked in not interested in oversight of the intelligence the National Intelligence Agency (NIA). Before community,” Nathan said. 1990, in exile, he worked in the ANC’s Mbokodo Security Department, allegedly involved in the Using state security against civil torture of dissidents and detainees. Jacob Zuma was Mbokodo’s deputy head from 1986 to 1993. society watchdogs Some candidates feared that the screening project, known as Project Veritas, was an attempt Under the Zuma presidency, more frequently than by Zuma’s supporters to tighten his control over under the Mbeki presidency,299 several incidents the party’s caucus, and that the information of threats, veiled threats and burglaries targeting gleaned during the screening process could be civil NGOs occurred.300 Amnesty International’s used against them.296 report South Africa 2015/2016 states:

In 2015, Ronnie Kasrils again stated that the SSA had “become totally immersed in the game Harassment of human rights defenders and of politics and the power politics at play in this organizations and undermining of oversight country”.297 Laurie Nathan, the director of the bodies by ruling party and state officials Centre for Mediation at the University of Pretoria, remained a major concern … Surveillance by saw the statement as proof that the intelligence crime intelligence or state security officers services had become more involved in domestic against human rights defenders, including politics than it had admitted to previously. Nathan, journalists and community activists, continued 301 one of three commissioners in the Mathews to be reported. Commission into the intelligence services, stated: During 2015 to 2017, security officials and the then State Security Minister David Mahlobo periodically The trend has been growing for the accused some parliamentary journalists and civil past 20 years. Previously we only knew society organisations of being “foreign agents” with a “regime change” agenda.302 R2K responded: about it through leaks, but now they are admitting it.298 The allegations are offered without evidence or substantiation. No names are named. No

296. http://mg.co.za/article/2014-03-27-spooks-vet-anc-candidates. 297. http://www.aljazeera.com/blogs/africa/2015/02/battle-intelligence-south-africa-ssa-spy-cables-guardian- security-150224170928946.html. 298. http://www.bdlive.co.za/national/2015/03/06/ssa-losing-sight-of-core-mandate-as-it-chases-its-own-tail-says- kasrils. 299. For similar conduct under President Zuma’s predecessor, Thabo Mbeki, see William Mervin Gumede, Thabo Mbeki and the battle for the soul of the ANC (Zebra Press, Cape Town, 2005), pp 298-299. 300. http://www.iol.co.za/news/crime-courts/sinister-cases-of-break-ins-document-theft-1419065;http://www. dailymaverick.co.za/article/2015-04-29-right2know-intelligence-agencies-harass-political-activists-and-civic- organisations/#.VUC_nZUcTIW; http://www.netwerk24.com/Nuus/Politiek/meeste-mense-nog-in-sa-vanjaar-wettig- afgeluister-20161216. 301. https://www.amnesty.org/en/countries//africa/south-africa/report-south-africa/. 302. http://amabhungane.co.za/article/2015-10-26-civil-society-urges-national-assembly-to-appoint-suitable-watchdog- for-the-spies.

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charges have been laid before a court of law. ANC cadre deployment and parallel As a result, they could apply to nobody or they could apply to anybody. They cannot be security networks verified or refuted. An emerging pattern of paranoia and suspicion in South African politics Due to cadre deployment, key crime intelligence, and public life makes it impossible to take investigative and prosecutorial services had the Minister’s claims at face value. There is for years been effectively unable to use their growing evidence that intelligence structures constitutional powers against senior ANC monitor and harass activist movements and politicians allegedly involved in corruption, other civil society formations, as well as including President Zuma. The formal democratic investigative journalists. We have also seen checks on presidentialism in the hybrid regime the anonymous leaking of bogus “intelligence were successfully neutralized. This will remain reports” to advantage or disadvantage certain possible during the rule of President Ramaphosa political causes and figures, speaking to a sorry or his successor. history of factionalisation of some sectors of the intelligence agencies, who have abused The activities of politicized and partisan crime their powers unconstitutionally to get involved intelligence and state security officials were in democratic politics.303 noticed among officials.306 The Directorate of Special Operations (known as the “Scorpions”), Journalists have provided indications of mysterious was formed in 1999 under then President Thabo break-ins into the home of opposition politician Mbeki. With a staff of several hundreds, it Julius Malema’s lawyer and the offices of the investigated Jacob Zuma and his allies on charges NGOs involved in litigation against Zuma allies, of corruption before he became president. After like the Helen Suzman Foundation.304 Zuma had become president, Richard Mdluli, a Zuma supporter, was appointed as divisional Security agencies and networks have been closely commissioner of the police’s Crime Intelligence involved in the factional struggles during which Division (CID) effective from 1 July 2009. Zuma has tried to remove internal ANC opponents and critical officials. Steven Friedman, director of The appointment procedure occurred without the the Centre for the Study of Democracy, stated: regular vetting procedures. Mdluli faced criminal prosecution for a myriad of crimes ranging from Zuma was head of ANC intelligence and so, murder to corruption.307 It is suspected that this under his watch, the security cluster in general happened because of Mdluli’s alleged role in and the spies in particular have much more providing Zuma’s lawyers with the so-called “spy room to move – and so to meddle in national tapes”. These were used by then acting National politics, in this case on behalf of the shadowy Director of Public Prosecutions, Mokotedi Mpshe, public-private networks that have also become to withdraw the 783 counts of corruption, fraud, a key feature of our national life.305 money laundering and racketeering against Jacob Zuma, enabling him to become president of South Africa.

303. http://www.r2k.org.za/2016/11/18/mahlobo-must-go-get-the-securocrats-out-of-democratic-spaces/; http://www. capetalk.co.za/articles/233352/minister-mahlobo-caught-out-lying; Jacques Pauw,The President’s keepers: Those keeping Zuma in power and out of prison (Tafelberg, Cape Town, 2017), pp 56-57. 304. https://martinplaut.wordpress.com/2016/03/22/south-africas-mysterious-burglaries/; http://www.dailymaverick. co.za/article/2016-10-18-the-way-we-are-the-judge-the-opposition-leader-the-tax-settlement-and-the-mysterious- break-ins/#.WAb7m5Uw_IU. 305. Steven Friedman, “Zuma as a former spy is important in understanding the Moyane-Gordhan battle”,Business Day, 2 March 2016. Also see https://www.dailymaverick.co.za/article/2017-12-05-the-principal-agent-network-pan-dossier- zuma-and-mahlobo-knew-about-arthur-frasers-rogue-intelligence-programme/#.WmzVTrpFxjq. 306. http://mg.co.za/article/2012-08-17-00-zuma-why-were-not-laughing-any-more. 307. Jacques Pauw, The President’s keepers: Those keeping Zuma in power and out of prison (Tafelberg, Cape Town, 2017), pp 300-301. 79

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Despite being suspended on full pay since 2012, him. Some highly skilled policement were removed and despite the fact that evidence implicating because they posed a threat to the Mdluli side. Mdluli in corruption was successfully used to fire Several of the current top generals did not have his second in command, Solly Lazarus, in May valid security clearances.312 2014, the police seemed unable to fire Mdluli during the Zuma presidency.308 Shortly after Pauw recounts that, according to his sources, Mdluli’s appointment, the Scorpions investigating police and the Hawks units, under the leadership unit was formally disbanded. Advocate Vusi Pikoli, of Hawks General Berning Ntlemeza, had become former national director of Public Prosecutions, rogue units during Zuma’s rule. They were alleged in his memoirs, My Second Initiation, that implicated in dirty tricks like break-ins at state the decision to disband the Scorpions was “aimed institutions, illegal interceptions and intimidation. at protecting corrupting politicians”.309 They ensured that all sensitive dockets on Zuma and his allies were stashed away by Ntlemeza.313 The official Directorate for Priority Crime Ntlemeza has been found to be “dishonest” and Investigations (known as the “Hawks”) replaced lacking “integrity and honour” by a High Court the Scorpions. In 2011, the Constitutional Court judge for lying under oath.314 also found that it was “insufficiently insulated from political influence in its structure and Mdluli was only relieved of his duties (and functioning” to fulfil its functions as an anti- retired with full benefits) in January 2018, corruption investigation agency.310 The Hawks is after Ramaphosa had won the ANC leadership vulnerable to political interference as there are struggle.315 Likewise Ntelemeza was only then two processes by which its head can be removed: retired with benefits.316 In the same week, a one through the minister of Police and the second major-general of Crime Intelligence involved in by Parliament, but there is no clarification as to electronic surveillance assignments was found which process is superior.311 strangled in the back of his car.317 An analysis of these cases reinforces the conclusion that under The award-winning investigative journalist, the ANC’s one-party dominance, a hybrid regime Jacques Pauw, documented in a book first has emerged. published in 2017 how networks within the Hawks, Crime Intelligence and the SSA prepared an active Securocrats to remain powerful defense of Zuma. As recorded by Pauw, the Crime Intelligence Division was plagued by infighting, Factional struggles in and among the ANC, its allies maladministration and division between the and breakaway factions are set to continue. This Mdluli supporters and those who turned against

308. https://www.issafrica.org/iss-today/why-saps-needs-better-crime-intelligence. 309. http://www.legalbrief.co.za/article.php?story=20131024121805632; 1.1594519#.UnKfeb5gXzB; Vusi Pikoli and Mandy Wiener, My Second Initiation (Picador Africa, Johannesburg, 2013). 310. SAPA, “Hawks law sent back to parliament”, IOL News, 17 March 2011; Andrew Faull, Inside view: Police officials’ perceptions of corruption and integrity management at three Gauteng SAPS stations in 2009 (ISS, Pretoria, 2011); Andrew Faull, Corruption in the South African Police Service: Civilian perceptions and experiences (ISS, Pretoria, 2011); Gareth Newman and Andrew Faull, Protector or predator? Tackling police corruption in South Africa (ISS, Pretoria, 2011), pp 20-24. 311. http://www.bdlive.co.za/national/2013/10/15/legislation-does-not-protect-hawks-from-political-interference; http://www.bdlive.co.za/national/2015/05/07/dirt-piles-up-in-the-polices-house. 312. Jacques Pauw, The President’s keepers: Those keeping Zuma in power and out of prison (Tafelberg, Cape Town, 2017), pp 297-299. 313. Jacques Pauw, The President’s keepers: Those keeping Zuma in power and out of prison (Tafelberg, Cape Town, 2017), pp 321-323. 314. http://www.issafrica.org/iss-today/institutions-in-crisis-continued. 315. https://www.dailymaverick.co.za/article/2018-01-17-analysis-the-rise-and-fall-of-richard-mdluli-a-man-who- damaged-our-society/#.WmyQ_KjibIV. 316. https://www.sowetanlive.co.za/news/south-africa/2018-01-17-ntlemeza-mdluli-out-for-good-mbalula/. 317. https://www.msn.com/en-za/news/national/exclusive-crime-intelligence-major-general-found-dead-in-car/ar- AAuOTUp. 80

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trend, combined with increased protest politics implicated in the alleged mismanagement of state and scarce resources in a struggling economy, security funds in The President’s keepers, the book will reinforce the securitization of politics ina referred to above by Jacques Pauw.320 In May hybrid regime. A key test period would emerge 2018, Ramaphosa also appointed a committee to in future if electoral or other developments were review the SSA.321 Crime Intelligence and Defence to threaten to remove the national, provincial or Intelligence have thus far been excluded from local hold on power of a dominant ANC faction review, although Peter Jacobs was appointed to or the ANC as a whole.318 It is also indicative of head Crime Intelligence.322 strong non-democratic dimensions in ANC politics that insiders had alluded to the risk of conflict However, at least since the Mbeki era, the and even civil war in the ANC if the leadership politicization of the security services has transition was not handled well and the Zuma continued. It is unlikely that the culture of camp was antagonized too much.319 secrecy and corruption of the past decade, or vulnerability to domestic political factionalism, Since Ramaphosa have come to power, the will be changed soon under Ramaphosa.323 Zuma rhetoric of securocrats alleging a risk of regime has induced resignations and used redeployments change by opposition forces has disappeared. In to maintain his control over the security agencies. April 2018, Arthur Fraser, a Zuma loyalist, was Ramaphosa has been trying to do the same to also redeployed as director-general from SSA remove Zuma loyalists or potential opponents.324 to Correctional Services. It happened when the Due to factionalism and the undemocratic tenor inspector-general for Intelligence, Setlhomamaru of current politics, Ramaphosa will continue to Dintwe, turned to the courts after Fraser had strongly rely on the securocrats to stay in power withdrawn his security clearance. Fraser was in the short and medium term.

318. http://www.dailymaverick.co.za/article/2016-08-22-op-ed-does-the-anc-face-defeat-in-2019/#.V8HFIY9OJjp. 319. http://www.huffingtonpost.co.za/2018/02/04/inside-the-transition-what-zumas-team-is-thinking_a_23352517/. 320. https://www.businesslive.co.za/bd/national/2018-04-11-ssas-arthur-fraser-has-threatened-me-intelligence- inspector-general-accuses/. 321. https://www.dailymaverick.co.za/opinionista/2018-06-19-state-security-review-panel-will-need-the-wisdom-of- solomon/#.WyoVbaczbIV; https://www.dailymaverick.co.za/article/2018-05-20-after-the-abuse-of-zumas-years- state-securitys-long-journey-to-recovery-starts-but-not-all-is-smooth/#.WwJ05EiFPIU. 322. https://issafrica.org/iss-today/south-africas-damaged-intelligence-system-is-at-a-crossroads. 323. https://www.dailymaverick.co.za/article/2018-05-20-after-the-abuse-of-zumas-years-state-securitys-long-journey- to-recovery-starts-but-not-all-is-smooth/#.WwJ05EiFPIU. 324. Susan Booysen, Dominance and decline: The ANC in the time of Zuma (Wits University Press, Johannesburg, 2015), pp 74-75, 309. 81

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Part VIII The justice system and the judiciary

Policy documents of the ANC state unambiguously rights. A second-order approach to tackle the that the organization wants to deploy its cadres background rules that structure and result from in the judiciary too. The South African judiciary ANC domination has been largely absent.325 is still generally seen as independent and free of executive interference. However, this position is At present, as argued by Constitutional Law expert vulnerable to political pressures. Sujit Choudry, the Constitutional Court lacks an adequate understanding and the conceptual Constitutional Law experts Issacharoff and Pildes tools to question the assumption of political distinguish between first-order and second-order competition and alternation in South Africa’s approaches to constitutional judicial review. In political order. The Constitutional Court judges do South Africa, the Constitutional Court has tended not realize that it cannot rely on the risk of losing to use a first-order approach that gives attention power as a strong check on the ANC’s abuse of to those consequences of the ANC’s domination power.326 that manifests themselves as violations of

325. Sujit Choudry, “‘He had a mandate’: The South African Constitutional Court and the African National Congress in a dominant party democracy”, Constitutional Court Review, 2010. 326. Sujit Choudry, “‘He had a mandate’: The South African Constitutional Court and the African National Congress in a dominant party democracy”, Constitutional Court Review, 2010, pp 5-6, 37-38. 82

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Under as the minister of Justice, new government would gain the right to appoint legislation affecting the judiciary was introduced members of a new council that would oversee in 2012. According to Loammi Wolf,327 a legal lawyers. It would also be allowed to dissolve academic, Radebe had been trained at Karl Marx the council, a power that could be used if its University in the judicial model of the former members proved to be too headstrong. German Democratic Republic (GDR/DDR), in the early 1980s. According to the GDR model, the Critics of the bill have included both Mr Bizos Constitutional Court would be the apex ofthe [George Bizos, Nelson Mandela’s defender court system. Legislation also reconstituted the before his incarceration] and – before he died Constitutional Court in this way. in 2012 – Mr Chaskalson, who served as chief justice under Mandela. Mr Chaskalson wrote In the East German model, subordinate courts that the new bill was “calculated to erode” the would not be bound by precedent, but also had independence of lawyers and indirectly that of to adjudicate according to the directives issued by the judiciary.329 the most senior court, which in turn had to reflect political and socio-economic policies in the state. These ANC government initiatives point to a Judicial review of legislation or executive action hybrid regime, not a democracy. was not permitted, as this reflected a “Western” notion of the separation of powers. The chief Legal command and rent extraction justice would become directly accountable to the political elite. This model is more compatible by ANC cadres with a hybrid regime than a fully-functioning democracy.328 The international system confers a juridical sovereignty on states that may in practice be less As The Economist reported on 23 August 2014: absolute. Pierre Englebert states that regardless of the state institutions’ actual capacity, juridical [C]ritics worry less about the qualifications and sovereignty nevertheless confers legal command abilities of those who have been appointed, to African states, defined as “the capacity to but rather express concern that some of the control, dominate, extract or dictate through the country’s best lawyers have been blocked law”. 330 from appointment … Those suspicions have been buttressed in the few instances when Legal command offers opportunities for rent the Judicial Services Commission (JSC), which seeking and patronage to the main power holders, recommends the nomination of judges, has but also local and intermediary actors. Rather deigned to give reasons ... than being an instrument for limiting the state’s arbitrary power, it becomes a tool to exercise A second avenue of attack is through a new power over others and extract rents, ranging from bill that would end self-regulation of the legal official documents and citizenship to the right to profession. The bill, which has been passed seize public resources. These authorities embody but not yet signed into law, would give the the legitimacy of the state, defined in legal terms. government considerable influence over the As a result, they can extract rents even in the day-to-day running of the legal profession. The

327. Loammi Wolf, “Jeff Radebe, the judiciary and the East German model”,Politicsweb.co.za , 17 April 2012. 328. See the analysis of Anthea Jeffery at http://news.acts.co.za/blog/2013/10/judiciary-under-attack-from-the-ruling- party-but-holding-firm. 329. http://www.economist.com/news/middle-east-and-africa/21613352-silk-gowns-red-berets-and-struggle- independent-court-battles. Also see Anthea Jeffrey at http://news.acts.co.za/blog/2013/10/judiciary-under-attack- from-the-ruling-party-but-holding-firm. 330. Pierre Englebert, Africa: Unity, Sovereignty, and Sorrow (Lynne Rienner, Boulder, 2009), p 62. 83

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absence of administrative efficiency, coercive Malan concludes that in cases on property capacities or good public services.331 rights, land reform and affirmative action, the embeddedness of the judiciary in a political The emphasis in hybrid regimes shifts from elite and its dominant ideology became quite “the rule of law” to “the rule by law”. Even if clear. In 2013 in Agri South Africa v Minister of the hybrid regime impinges significantly on Minerals and Energy (AfriForum and others as the civil and business rights protected by the amici curiae),334 the Constitutional Court upheld existing Constitution, ANC actors are likely to use legislative provisions335 that terminated the justifications based on legal command. mineral rights of mineral rights holders without proper compensation to such holders. In 2014 A politically constrained judiciary? in the judgment in South African Police Service v Solidarity abo Barnard336 the Court once again sided itself with one of the kingpins of the According to Professor Koos Malan, an expert on dominant elite’s ideological doctrines, namely the Constitutional and Public Law at the University of principle of representivity. Similarly, in December Pretoria, the judiciary is in fact inherently weak 2017, a Constitutional Court decision on the and dependent on the support of the political University of the ’s language policy did branches. It is appointed and financed by the not implement the language and cultural rights political branches, devoid of its own resources and of minorities enshrined in the Constitution. Chief dependent upon the goodwill and cooperation of Justice Mogoeng with the majority effectively the legislature, executive, state administration and ruled that cultural minority rights were subject to the public in general to give effect to its rulings. It the political goal of transformation.337 is also integrated into the ruling elite with whom they share the same ideological assumptions In 2016 the Constitutional Court gave judgment in without any inclination to oppose them. Hence, the case of Economic Freedom Fighters v Speaker the impartiality of the courts, when it comes to of the National Assembly and Others; Democratic politically sensitive issues, is politically relative Alliance v Speaker of the National Assembly and and ideologically conditioned:332 Others (the so-called Nkandla-case).338 The case emanated from findings and directives in a report On the one hand – because of its weakness – of the public protector regarding illegitimate it will be incapable, and on the other hand – public expenses on the private homestead of because it is imbedded in a common power elite President Jacob Zuma in Nkandla in Kwazulu-Natal. – it will usually be unwilling to pass judgments The judgment amounted to a heavy rebuke of the that would disrupt the basic ideology or derail president and of the caucus of the ruling ANC in the core goals of the dominant elite. It can Parliament. Parliament, and more specifically the make corrections within the framework of the parliamentary caucus of the ANC, failed to heed ideological assumptions and policy goals of to these findings and directives and usurped for the dominant elite, but it cannot and will not itself the powers to review and eventually reject disrupt or frustrate the framework as such.333 the public protector’s report, thus protecting

331. Giulia Piccolini, “Ultranationalism, democracy and the law: insights from Cote d’Ivoire”,Journal of Modern African Studies, 52(1), 2014, pp 45-68. Also see http://www.bdlive.co.za/opinion/2014/10/17/sa-has-turned-into-a- predatory-state. 332. Koos Malan, “Reassessing judicial independence and impartiality against the backdrop of judicial appointments in South Africa”, Potchefstroom Electronic Law Journal, 17(5), 2014. 333. Koos Malan, “Reassessing judicial independence and impartiality against the backdrop of judicial appointments in South Africa”, Potchefstroom Electronic Law Journal, 17(5), 2014, especially pp 1989, 1992. 334. 2013 (7) BCLR 727 (KH). 335. The Mineral Land Petroleum Resources Development Act, Act 28 of 2002. 336. 2014 (1) BCLR 1195 (KH). 337. http://www.fwdeklerk.org/index.php/en/latest/news/726-article-subjectivity-and-fallacious-arguments-in-the- majority-ruling-on-the-ufs-language-policy. 338. 2016 (5) BCLR 618 (CC).

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its own leader and the party itself. The court, cases like those asking for Mdluli’s suspension and among other things, ruled this conduct to be the removal from the roll of advocates of senior unconstitutional and rebuked the parliamentary officials in the NPA protecting Mdluli and Zuma, ANC in sharp terms. the courts have stepped in to decide on issues usually prevented by good governance or solved The judiciary’s agency by political and bureaucratic decision makers in a democracy.340 According to Malan, the impression that the The different courts and judges are thus able to court acted here from outside the dominant recast the field of interaction between democratic elite and gave a verdict against the elite is in fact and non-democratic forces and actors in the hybrid mistaken.339 None of the ruling elite’s ideological regime. They are only able to do so conservatively convictions were at stake. The Nkandla-case and retrospectively, with limited effect due to the involved a dispute within the dominant elite, that broader field of power. They do not do so ina is split about Zuma, about some of his actions, politically decisive way, but in ways not predictable and about the protection that he received from or controllable by one political faction. Ramaphosa the ANC caucus. has felt comfortable to wait for the courts to decide on the fate of some Zuma loyalists in the This is a correct conclusion. However, the role of system. The judiciary remains constrained by the the judiciary does indicate the spaces of freedom broader ideological and political constellation of left within the hybrid regime, the current state of power. Simultaneously, the judiciary has its own political dynamics, as well as the extent of its own agency within the hybrid regime and remains an agency. Even the dominant ANC faction under important actor co-shaping the symbolic order, Zuma has been unable to directly or consistently boundaries and political options of the hybrid suborn the courts, who have been able to uphold regime. some of the values and norms of the rule of law. In

339. Koos Malan, “Dié Hof se visie is dieselfde as die ANC“, Rapport Weekliks, 1 Mei 2016 by http://www.netwerk24. com/Stemme/Aktueel/die-hof-se-visie-is-dieselfde-as-die-anc-20160501. 340. https://www.news24.com/SouthAfrica/News/npa-to-consider-options-after-nomgcobo-jiba-lawrence-mrwebi- struck-off-advocates-roll-20160915; http://www.businesslive.co.za/bd/politics/2016-11-17-political-firestorm-is- raging-in-sas-criminal-justice-system/. 85

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Part IX Universities, the media and attempts at ANC control

Pressures on the autonomy of for “patriotic citizens”.341 As indicated by the political scientist Nicola de Jager, “patriotism” has universities become a code word to inhibit criticism of the ANC, while critics are often smeared as being non- The non-pluralist political culture of the ANC, patriotic. 342 which does not differentiate between party and state, is unlikely to respect the autonomy of The former minister for Higher Education and universities and academic dissenting views. In Training, Blade Nzimande, also is the leader of September 2014, then President Zuma spoke at the SACP and had been so at the time he served the Progressive Professionals Forum and called on as education minister. History is very present South Africa’s universities to become incubators in Nzimande’s speeches. In a speech in 2007,

341. http://www.bdlive.co.za/opinion/columnists/2014/09/08/zuma-patriotism-and-the-nationalist-threat-to- independent-thought. 342. http://www.kas.de/wf/doc/kas_10560-1522-2-30.pdf?070328103113, pp 15, 25.

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he referred to “The pessimists, those who lost one clause, the minister would need only to have their will to struggle with the collapse of the “reason to believe”, rather than concrete proof, Berlin Wall”. His conclusion was different: “It is that intervention is necessary. Years of creeping possible (and imperative) to press ahead with the control by the state could well endanger the socialist-oriented transformation in the present existence of an independent public university right now”.343 It is not clear whether the ANC sector.346 government sent congratulations to the German government during the twenty-fifth anniversary Universities whose students come from celebrations of German re-unification on9 communities that largely support opposition November 2014.344 parties will face the greatest threat to autonomy in the next few years. There has been a focused The ANC government has created a legal base for effort, for example, to weaken the position of extending the ANC’s capture of state institutions Afrikaans and Afrikaans speakers at certain to universities. In 1999, the minister was given schools. Similar political pressures, combined the power to appoint administrators under his with economic pressures, have resulted in new direct authority to replace university councils university language policies since 2015. These and vice-chancellors for a period of two years. In policies weakened or removed Afrikaans as a 2000, he was given the power to veto agreements medium of instruction – despite its officially equal entered into by universities. In 2002, he was given constitutional position and significant numbers the power to amend the institutional statute of a of students demanding Afrikaans instruction – at university in certain circumstances; and in 2012, the University of South Africa, the University of he was given the power to appoint an assessor, Pretoria, the University of the Free State, and the instead of or even as well as, an administrator, University of Stellenbosch. with extensive powers over universities. There are also efforts to increase the ANC In 2016, Cabinet and Parliament approved the government’s control over these institutions Higher Education Amendment Draft Bill. This new and their discourses. This campaign has been law increased the powers of the minister of Higher noticeable, since many of these schools and Education to intervene in university matters of universities were working well, while the various kinds.345 Existing education legislation government did not really undertake a concerted already enables the minister to issue legally effort to also improve the majority of other less binding “directives” to universities and appoint functional schools and universities in the country administrators to take over their management. where education is in crisis.347 However, to do this, she is required to provide proof, for example through audit reports, that the Instead, ideological initiatives are expected to university has problems to warrant suspending its receive more attention. For example, Angie independence. Motshekga, the minister of Basic Education, has renewed efforts to promote the decolonisation The new legislation allows the minister to change of education, using the lack of clear definitions processes and mandates of universities and other to privilege pro-ANC perspectives, rather than a higher education institutions and also empowers broad, critical curricula improving South Africa’s the minister to withhold funding. According to underdeveloped scientific and mathematical

343. Blade Nzimande, “Dual power – The living legacy of the Great October Revolution” at https://www. amadlandawonye.wikispaces.com. 344. On the current frosty relations with Britain, see “Zuma’s smoke and mirrors are his own worst enemy”,Rand Daily Mail, 3 November 2014; Dennis Worrall, “President Zuma, you have to do better”,Polity , 3 November 2014. 345. Also see Department of Education and Training, “Higher Education Act, 1997: Publication of explanatory summary of the Higher Education Amendment Bill, 2015”,Government Gazette, 605(39384), 9 November 2015. 346. “Bill giving state more say over varsities passed”,Business Day, 25 May 2016; http://www.iol.co.za/news/politics/ controversial-higher-education-amendment-bill-passed-2025767. 347. https://www.dailymaverick.co.za/article/2017-11-16-ucts-law-programme-under-existential-threat/#.WoEL6UxuLIU. 87

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skills.348 Ironically, African mother-language The surface reasons were clear. The ANC education, which used to be promoted under government had invested much more generously white rule, now is again being promoted as part in secondary than in tertiary education over the of decolonisation. Simultaneously, based on the past two decades. About 12% of the education selective politics and social contract of the hybrid budget had gone to tertiary institutions, compared regime, Afrikaans, the one African language in to 20% elsewhere in Africa. The government which world-class scientific outputs have been allowed university numbers to double in less than produced, is being marginalized in institutions of twenty years, while underfunding the sector. As a higher education.349 result, real per capita funding of tertiary education has dropped by 30%. The cost of servicing tertiary Rebellious constituencies institutions thus shifted incrementally towards those trying to get into them in the form of rising student fees. The biggest student protests to hit South Africa since 1994 erupted in October 2015. The students However, some analysts see a political logic behind had rejected an earlier government offer to cap the this government policy. Investment in secondary increase of study fees at 6%, down from the 10% to education is an investment in political loyalty; it 12% proposed by the management of universities. keeps influential organisations such as the South The demonstrations, often involving intimidation African Democratic Teachers Union (SADTU) and violence, closed some of the country’s top supportive of the ANC. In contrast, investment in universities. Protest songs were sung, placards the tertiary sector seems an investment in critical raised and entrances to campuses barricaded and independent opposition voices among the with burning tyres.350 Protests at Parliament in black urban middle class. Cape Town turned violent and subsequently the police used stun grenades and water cannons to The political order, with its increase in service stop a group of students breaking into the Union delivery protests, is becoming more, rather than Buildings, the seat of government in Pretoria.351 less polarized among the young urban middle Vandalism and arson destroyed buildings and class. The ANC leadership is increasingly being facilities, creating millions of rand in damage. After discredited by scandals and corruption, selective an arson incident at the University of KwaZulu- patronage is obvious, and the economy is unable Natal in September 2016, firefighters managed to to improve youth unemployment. Discursive bring the fire under control‚ but the faculty had shifts towards assertive black identity politics and lost priceless material, including rare books dating radical economic restructuring have occurred back to the foundations of modern-day South among black middle-class youth. African law in the seventeenth century.352

348. https://allafrica.com/stories/201812190202.html; https://mg.co.za/article/2017-03-24-00-baby-steps-to-decolonise- schools. 349. https://www.litnet.co.za/afrikaans-is-a-major-african-asset-dele-olojede-the-more-we-eliminate-this-diversity-the- lesser-we-become-says-africas-first-pulitzer-prize-winner/. 350. http://www.bbc.com/news/world-africa-34618724; http://www.economist.com/news/middle-east-and- africa/21677252-anc-faces-perhaps-its-biggest-challenge-yet-boiling-over; http://www.theglobeandmail.com/news/ world/south-african-police-use-stun-grenades-as-students-protesting-tuition-hikes/article26901219/; http://www. theguardian.com/world/2015/oct/21/riot-police-tear-gas-student-protest-south-africa-university-fees-cape-town; http://edition.cnn.com/2015/10/27/africa/fees-must-fall-student-protest-south-africa-explainer/; http://sa-monitor. com/south-africa-barriers-entry-financial-times-25-october-2015/#more-5095. 351. http://www.bdlive.co.za/national/education/2015/10/23/police-fire-stun-grenades-as-tensions-run-high-at-union- buildings; http://www.bbc.com/news/world-africa-34618724. 352. http://www.independent.co.uk/news/world/africa/ukzn-south-africa-university-protests-nazi-style-library-book- burning-rape-brutality-a7230296.html.

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They blame small group actors in a narrative that not impose unnecessary burdens on the national portrays the latter to be big and powerful. “This is budget,” the World Bank said.355 just the tip of the iceberg,” says Sinabo Mnqonoiwa, a 27-year-old postgraduate student at the Failed education policies University of the Witwatersrand in Johannesburg. “There’s no Rainbow Nation – it’s on paper, Stats SA’s research paints a bleak picture of failing we are all free on paper”.353 While scapegoat policy interventions, particularly in education politics and resentment surfaces, they ignore the and youth employment. The percentage of black agency of the ANC to improve conditions and the African professional, managerial and technical ANC’s accountability for corrupt and ineffective workers aged 25 to 34, has dropped by 2% over governance. the past twenty years, leaving this generation less skilled than their parents – and less skilled than Both top-down and bottom-up political forces will every other race and age group, according to Stats increase pressure on the autonomy of universities SA. “When parents are better equipped than the in the near and medium term. As predicted, the children, it’s a sign of regression,” said former ANC has tried to instrumentalize the waves of Statistician-General Pali Lehohla.356 student protests in its effort to strengthen its hold on universities. Zuma announced free higher- Despite pockets of excellence, the quality and work education for students from poor households in ethic of too many South Africans are pretty poor. December 2017. This ignored the views of the All attempts to improve the standards at schools Treasury, the recommendations of the Zuma- are countered by SADTU, which is allied to the appointed Heher Commission and of the Davis Tax ANC. It has been behind “widespread” corruption Committee. Free education previously had been a and abuse. This included teachers paying union plank in the EFF party programme.354 officials for plum jobs, and positions being sold for sex, stock or money. The government has done Since coming to power, Ramaphosa has not little in response. Perhaps this is unsurprising; reversed Zuma’s new policy. The ANC’s plan to most of the senior civil servants running education spend more funds subsidising higher education are SADTU members.357 is fiscally unsustainable and is unlikely to supply more skills to the economy, the World Bank stated The Economist commented: on 22 January 2019. The cost of post-school education and training will more than double to Government procurement at all levels is now R172.2 billion ($12 billion) by 2022, or 2.5% of the riddled with graft. Start with schools. Corruption GDP, from R65.4 billion in 2017. Watch, an NGO, says it has received more than 1 000 reports over the past few years relating The programme’s high cost would likely make the to crooked school principals, many of whom target of doubling enrolments by 2030 “elusive,” have been stealing cash from their school’s according to the World Bank. “In a fiscally bank accounts or looting funds intended to feed constrained environment, it will be critical that hungry children. Their jobs are now so lucrative the government’s higher-education policy does that they are worth killing for. In 2015 one head

353. http://www.bdlive.co.za/opinion/columnists/2015/10/30/pushing-university-funding-not-in-anc-interest; http:// www.timeslive.co.za/local/2015/10/24/Sanef-concerned-about-intimidation-of-journalists-during-FeesMustFall; https://www.dailymaverick.co.za/article/2016-12-05-op-ed-the-politics-of-spectacle-reflections-on-the-2016- student-protests/#.WmO1IqjibIW. 354. Susan Booysen, Dominance and decline: The ANC in the time of Zuma (Wits University Press, Johannesburg, 2015), p 229. 355. https://www.biznews.com/sa-investing/2019/01/22/zuma-free-education-blows-hole-growth-world-bank. 356. https://www.dailymaverick.co.za/article/2016-04-18-the-great-reversal-stats-sa-claims-black-youth-are-less-skilled- than-their-parents/#.WFeu3o9OLIU. 357. https://www.economist.com/news/middle-east-and-africa/21713858-why-it-bottom-class-south-africa-has-one- worlds-worst-education; “Nzimande’s power grab”, Business Day, 12 May 2016. 89

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teacher was hacked to death and another was Denying a child the chance of a bright future shot after they refused to make way for people will drive any parent to extreme levels of anger. who had “bought” their posts. Officials of the Politicians who, with good reason, are afraid teachers’ union have also been implicated in of the consequences, especially in a politically selling posts.358 vulnerable province like Gauteng, would rather that parents did not come to focus on Judith February, previously executive director things like below 50% pass rates in maths. of the Democracy and Governance Unit of the Hence the effort made to focus public anger Human Sciences Research Council (HSRC) and also on other issues such as racism and Afrikaans. head of the Institute for a Democratic Alternative The political formula is easy: make some for South Africa (Idasa) South African Governance outrageous allegation based on a sliver of truth Division stated in 2018 that: and appeal to the media’s bent for the pitiful drama put into motion when the most reptilian South African pupils have done abysmally in of politicians conspire through half-truths and global rankings for the Trends in International populist incitement to turn two fundamentally Maths and Science Study (TIMMS), and even decent but equally desperate racial or ethnic more distressing is that our Grade 4 pupils communities against each other and threaten are unable to ‘read for meaning’. South Africa violent disorder. Ferry in a crowd of protesters, scored the lowest of 50 countries in the Progress make sure some wet-behind-the-ears click-bait in International Reading and Literacy Study focused junior journalist fresh out of media (PIRLS). For any other government committed school is there with his or her cellphone to to the wellbeing of its citizens and economic draw the voyeuristic public into the wretched growth, this would have been a crisis. For the scenes of the desperate parents fighting for the Zuma government it was business as usual …359 chance that their children might go to a good school. Then bring out the riot police, and you About 6% of South Africa’s GDP is spent on are assured of another week of not having to education, compared to the average of 4.8% in answer tough questions about the schools your EU countries. In 2017, South Africa allocated R240 department runs.360 billion, at 17.5%, the largest single portion of its budget, to basic education. Yet in January 2017, It is expected that populist agitation against some The Economist contended, “South Africa has one middle-class and Afrikaans schools will continue. of the world’s worst education systems.” This may result in serious flashpoints in the few next years. Many in the ANC will try to benefit ANC decision makers in northern provinces of from it politically. South Africa have now started using access to schools to respond to other popular frustrations The ANC’s defective education policies signal its with non-delivery and as a red herring to divert inability, more broadly, to master the challenge attention from its bad educational policies. In the of population growth of 20% in the past decades, process, especially middle-class and Afrikaans including a youth bulge. In 2016, Stats SA estimated schools, whose parents do not constitute a key the size of the country’s youthful population (14 constituency for the ANC, are being targeted. to 35 years old) to be 20.1-million, or 36% of the total population.361 Frans Cronje, president of the liberal thinktank, the IRR, has stated: Such a youth bulge, according to Gunnar Heinsohn, combined with high expectations, can easily

358. “The hollow state”, The Economist, 20 December 2015. 359. https://www.dailymaverick.co.za/opinionista/2018-01-09-on-freedom-fact-and-falsehood/#.WmOb16jibIV. 360. https://www.news24.com/Columnists/GuestColumn/gauteng-education-departments-master-class-in- delusion-20180123. 361. https://www.dailymaverick.co.za/article/2018-06-15-time-for-south-africa-to-invest-in-its-youth/. 90

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result in pressures on the existing institutions and the 2014 elections, the SABC was criticised for resource struggles that can be solved through refusing to air the campaign adverts of two main peaceful or less peaceful politics.362 In educational opposition parties, namely the DA and the EFF.366 institutions, but also elsewhere in society, the As stated by Nicola de Jager, political scientist at youth bulge and high unemployment in South the University of Stellenbosch: Africa are likely to strengthen the forces of political volatility in the next decade. Reporters, analysts and others within Media freedom under pressure the public broadcaster who are considered to operate out of line are In post-1994 South Africa, press freedom is slowly moved out, examples include guaranteed by Section 16 of the Bill of Rights. 367 Together with parts of the judiciary, the media has Eusebius McKaiser and John Perlman. been considered to be one the most important remaining checks on the power of the ruling party, The 2017 Freedom House report concluded: since the ANC government has largely neutralized other potentially independent watchdog Nonetheless, concerns about press freedom institutions through its policy of cadre deployment have grown in recent years amid increasing and other measures such as intimidation. Freedom government pressure on both state-run and House stated in its 2018 report: independent outlets. A number of recent incidents have compromised the credibility and In 2017, the media played a crucial role in independence of the SABC, the outlet with the exposing the corruption linked to the Gupta largest reach in the country. The most high- family and the involvement of British public profile incident came in May (2016), when relations firm Bell Pottinger in stirring up racial the SABC banned the broadcast of violent tensions in the country. Nonetheless, concerns protests taking place across the country. The about press freedom have grown in recent broadcaster’s controversial chief operating years amid increasing government pressure on officer, Hlaudi Motsoeneng – a political ally both state-run and independent outlets.363 of Zuma – said it was the role of the SABC to “educate the citizens”, and that coverage of However, it is important also to scrutinise the de the unrest could encourage further violence. facto realities of media freedom in South Africa.364 Critics of the ban alleged that the broadcaster The South African Broadcasting Corporation had enacted it in order to avoid unflattering (SABC) is the country’s public broadcaster.365 It coverage for the ANC in the run-up to the controls most television and radio broadcasting in August local elections. Amid protests against South Africa. the ban from journalists, civil society, and the opposition, the Independent Communications The ANC has used cadre deployment to align the Authority of South Africa (ICASA) ordered its state broadcaster with the ruling party. During reversal in July.

362. https://www.cfr.org/backgrounder/effects-youth-bulge-civil-conflicts. 363. https://freedomhouse.org/report/freedom-world/2018/south-africa. 364. http://www.r2k.org.za/; http://fxi.org.za/home/. 365. http://www.sabc.co.za/wps/portal/SABC/SABCARTICLE?id=5c5fc9804c9afedb8cbcff39f3bc9014& page_from=CSI. 366. http://www.sowetanlive.co.za/news/2014/04/22/sabc-bans-eff-advert---video; http://www.timeslive.co.za/ politics/2014/04/30/da-cries-political-censorship-as-sabc-refuses-to-air-second-advert. 367. http://paperroom.ipsa.org/papers/paper_10054.pdf. 91

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Seven SABC journalists and one contracted There’s a great deal of evidence from SABC freelance journalist were fired by the SABC journalists who’ve spoken out and say they in July after criticizing the protest ban policy. have been very, very greatly intimidated by The journalists were reinstated later in the the leadership in the corporation, and even month following a ruling by the Labour by people in government who have told them Court in Johannesburg. In June, Motsoeneng directly: Don’t antagonise the president or reportedly directed SABC staff not to engage don’t write about this. Don’t broadcast about in tough questioning of Zuma or to cover him that. And so there were plenty of reasons for negatively.368 him [Zuma] to feel intimidated ...372

Witnesses testifying in December 2016 before Private newspapers and magazines are often Parliament’s ad hoc committee investigating the critical of powerful figures and institutions and SABC, painted a picture of intimidation, death remain a crucial check on the government. threats, ministerial interference, secret meetings, However, government allies own a growing as well as a cult-like worship that surrounded share of independent media. In August 2013, Motsoeneng.369 SABC news had become tainted, Independent News and Media was bought by with politicians, including the former minister of Sekunjalo, a company which belongs to the pro- Communications, , constantly ANC Iqbal Survé. Money for the deal came from dictating how journalists should cover certain the state-run civil service pension fund, 25% stories, according to Thandeka Gqubule, one directly, and almost 45% in the form of a loan to of the eight above-mentioned fired journalists, Survé. Two Chinese state-run companies provided known as the “SABC eight”.370 The SSA played a 20% of the remaining funding.373 role in what was described as a climate of fear and intimidation at the SABC. Top SABC finance Due to cadre deployment to the regulatory body, officials testified how Motsoeneng secretly used ICASA, it has failed to ensure the non-partisan SSA officials to find incriminating evidence on his nature of the SABC.374 Allegations have emerged opponents so that he could dismiss them from about ANC attempts to also influence the the SABC.371 Journalists stated that during the commercial eTV television service.375 In February 2014 elections, they were told that 70% of their 2015 a SABC memorandum of incorporation coverage of the government had to be positive. emerged that gave the minister of Communications the power to discipline and remove executive John Matisonn, author ofGod, Lies & Spies, notes: managers and board members at the SABC. Before the emergence of the memorandum, SABC

368. https://freedomhouse.org/report/freedom-world/2017/south-africa. 369. “SABC inquiry: Who’s Hlaudi’s Godfather, members ask witnesses”, Daily Maverick, 11 December 2016; http:// www.news24.com/SouthAfrica/News/how-hlaudi-sold-the-sabc-20161211-3; http://www.businesslive.co.za/rdm/ politics/2016-12-10-politics-live-wherever-there-is--zumas-corporate-hatchet-man/; http://www.businesslive.co.za/ bd/national/media/2016-12-09-faith-muthambi-forced-hlaudi-on-sabc/. 370. https://www.dailymaverick.co.za/article/2016-12-12-sabcmotsoeneng-coup-ad-hoc-committee-wants-minister-of- state-security/#.WE-X5eZ97IV; https://www.businesslive.co.za/bd/national/media/2016-12-13-sabc-eight-detail- hlaudi-motsoenengs-reign-of-terror/. 371. https://www.businesslive.co.za/bd/national/media/2016-12-23-secret-purge-hlaudi-motsoenengs-dirty-war-at- sabc/. 372. http://www.aljazeera.com/programmes/listeningpost/2017/02/state-media-zuma-south-africa-170218113247808. html. 373. R.W. Johnson, How long will South Africa survive? The looming crisis (Jonathan Ball Publishers, Cape Town, 2015), pp 132-135. 374. Prinola Govenden, “Toothless regulator?” A critical analysis of ICASA’s regulation of the SABC so that it functions as a public service broadcaster (University of the Witwatersrand, Johannesburg, 2009). 375. http://www.dailymaverick.co.za/article/2014-10-30-op-ed-minister-patel-and-encas-feel-good-documentaries/#. VFkHgst0y71. 92

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board members could be removed through a Direct attacks on journalists have continued, parliamentary process only.376 including the police harassment of reporters across the country. They have been subject to wrongful Strained relations between the ANC or illegal arrest, forced to delete photographs or barred from entering particular spaces. In and critical journalists February 2015, the SSA confirmed handing David Mabuza, the Mpumalanga premier and current Although no serious incidents regarding deputy president of South Africa intelligence government authorisation to actively target reports on the lives and movements of journalists journalists have been reported, the ANC’s in the province.380 In November 2018, Reporters relationship with the media is generally strained. Without Borders (RSF) deplored the use of threats Van Onselen distinguishes between several and insults by EFF leader Julius Malema against phases in the relations. After coming to power in journalists and media outlets covering his party’s 1994, the ideals of a free and independent press alleged involvement in an embezzlement scandal, were championed and celebrated. However, the and called on the authorities to condemn his dynamics of governance, mismanagement and attempts to intimidate the press.381 corruption resulted in deterioration of media relations and the proposal of a media tribunal. In 2017, the South African National Editors’ Forum Through the state and pro-ANC private capital, a (Sanef) expressed alarm at moves by police series of existing and new media were remodelled to investigative journalists Jacques Pauw and and established, generally to be more “positive” Pieter-Louis Myburgh, who have both reported about and “supportive” of the government of the extensively on President Zuma’s alleged corrupt day.377 dealings. Media Monitoring Africa’s William Bird said the reports indicated the politicization of the Communications Minister Faith Muthambi told police, especially being used by certain people MPs in April 2015 that they needed to take further for their own agendas. Bird said it was a clear action on the issue of a regulatory system for and present threat to media freedom, but also a the print media so that they could achieve the clear attempt to undermine the credibility of the meaningful transformation agenda of the country. journalists.382 ANC spokesperson Zizi Kodwa confirmed in 2015 that the ANC was sticking to its 2007 resolution to Lizette Rabie, professor of Journalism at the call for a state-controlled media appeals tribunal University of Stellenbosch, has indicated that the to regulate the media.378 At the ANC conference alarm bells are ringing.383 Threats against media in December 2017, during which Ramaphosa freedom are already so severe that a comparison was chosen as ANC leader, the governing party could be drawn between the media (un)freedom resolved that its “parliamentarians must have under NP government during a period of internal enquired whether a media appeals tribunal is conflict and that under a peacetime ANC feasible”.379 government.384

376. http://sa-monitor.com/minister-defends-sabc-secrecy-times-live-18-march-2015/#more-3351. 377. http://sa-monitor.com/devolution-ancs-trust-media-bdlive-21-september-2016/. 378. http://www.news24.com/Archives/City-Press/Government-moots-return-of-dreaded-media-tribunal-20150429; http://www.enca.com/south-africa/zuma-takes-swipe-media-over-xenophobia-covera. 379. https://mg.co.za/article/2018-01-10-what-to-expect-in-parliament-in-2018. 380. http://www.dailymaverick.co.za/article/2015-04-28-op-ed-world-press-freedom-day-2015-sa-edition/#. VUDBT5UcTIX. Also see http://sa-monitor.com/south-africas-rica-process-much-open-abuse-htxt-africa-29-april- 2015/#more-3720. 381. https://rsf.org/en/news/rsf-decries-south-african-politicians-invective-against-reporters. 382. https://www.dailymaverick.co.za/article/2017-12-06-editors-forum-concerned-over-threats-to-arrest-jacques-pauw- and-news24-journalist/#.Wi92i0qWbIV. 383. See L. Rabie, “Media freedom in South Africa: A luta continua?”,South African Monitor, (5), November 2015, pp 97- 102. 384. P.J. Fourie, “’n Terugkeer na die onderdrukking van vryheid van spraak? Ooreenkomste tussen die apartheidsregering(s) en die ANC se optrede teen die media”, Tydskrif vir Geesteswetenskappe, 49(1), 2009, pp 62-84. 93

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According to the 2018 World Press Index by the when it comes to media entities that do not align international non-governmental RSF, media themselves with ANC objectives and policies.386 independence in South Africa is seen as fragile. The space for freedom of the media will continue In a global ranking of 180 countries, South Africa to be under pressure in the hybrid regime. was ranked twenty-eigth, with Norway taking first Both self-censorship and more independent place as the most media free country in the world. investigative journalism by citizens and business Regarding South Africa however, RSF also noted: may be the result.

Journalists are harassed and subjected to The impact of the media on changing political intimidation campaigns if they try to cover dynamics should however not be overestimated. If certain subjects involving the ruling ANC, the media uncovers questionable conduct by ANC government finances, the redistribution of land politicians, it depends firstly on the ANC and its to the black population or the #Guptaleaks factions how it would respond to the revelations. affair, all which are either off limits or provoke The ANC’s support of Zuma over years, even in a hostile reaction from the authorities.385 the face of considerable scandals reported in the media, indicates how strong a role the fear Still, the media and various actors from civil society of losing jobs and access to resources can play. have played an important role in maintaining the These dynamics limit the impact of the media and constitutional space for freedom of the media reinforce the hybrid regime. and expression against ANC pressure. It is clear that the ruling party will continue to be suspicious

385. https://rsf.org/en/south-africa. 386. Also see Susan Booysen, Dominance and decline: The ANC in the time of Zuma (Wits University Press, Johannesburg, 2015), p 309. 94

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Part X ANC policies and economic value destruction

Economic value destruction pace with its emerging market peers over the past decade.388 Doctor John Purchase, Agbiz’s CEO, has stated that poor ANC governance has already In the past decade, the ANC has been a prime made South Africans 25% poorer in the past seven destroyer of institutional capital and economic years.389 value in South Africa.387 A report by the Bureau for Economic Research found that South Africa’s South Africa slid into recession in the first half of economy could have been up to 30% larger and 2018 for the first time in nearly a decade despite created 2.5-million more jobs, had it had kept strong global growth. Already, the GDP has

387. See https://sa-monitor.com/wp-content/uploads/2018/03/SAM-8-February-2018.pdf. 388. https://www.timeslive.co.za/politics/2018-10-17-politics-wreaked-havoc-on-sa-economy-gareth-ackerman/. 389. https://www.farmersweekly.co.za/agri-news/south-africa/sa-lost-r1-trillion-economic-growth-past-seven-years/. 95

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shrunk to the worst in the past nine years and now in its longest downward business cycle phase the biggest budget deficit since 2004 remains.390 since 1945.395 According to the IMF, South Africa’s Unemployment has increased to 27.2%, from capital inflows may become scarcer, costlier and 21.5% in 2008. The National Income Dynamics more volatile in future. This situation would Study (NIDS) release a report in November 2018 pose risks to South Africa’s external financing: “A which showed that, in the past two years, the potential pull out of foreign investors, divesting middle class has shrunk from 20% to 18%.391 their existing holdings of local assets, also poses risks.”396 Especially since late 2015, according to the perceptions of investors and international credit Political intervention and selective rating agencies, political and economic risks in South Africa have increased.392 In April 2017 patronage both S&P Global and Fitch Ratings downgraded South Africa’s long-term foreign currency rating In August 2012, the Zuma government adopted to sub-investment grade. The third of the big the National Development Plan (NDP) as South global agencies, Moody’s, has however kept the Africa’s policy blueprint until 2030. The ANC’s country’s rating above investment grade. national conference in Mangaung (Bloemfontein) in December 2012 endorsed the plan, which Moody’s has historically been the most generous aimed at boosting the economic growth rate to of the three ratings agencies when it comes to 5.4% of the GDP and generating eleven million South Africa. It raised the country’s credit rating jobs. These objectives have never been reached, sooner and higher at the start of the century, but the ANC did proceed with several statutes and was slower to cut it through the disastrous and bills that greatly increased the government’s Zuma presidency. While Ramaphosa may be interventionist powers. They clearly prioritized the committed to domestic reform, the political redistribution of the existing economic pie, rather space and capabilities for implementation will be than its expansion.397 The main NDP megaprojects constrained by strong forces: ANC factionalism, were vehicles for corporate collusion and price- the need for fiscal restraint, tight monetary policy, fixing in construction, but also Gupta or ANC- ongoing global market volatility and a struggling related kickbacks.398 economy.393 In a report on all business-related legislation since The IMF in its World Economic Outlook has 2013, the IRR concluded that a common thread adjusted its low estimate of 1.5% economic through all the bills is that “they weaken property growth in South Africa in 2018 further downwards rights, reduce private-sector autonomy, threaten to 0.8%.394 The consequence is that the country is business with draconian penalties, and undermine

390. https://www.bloomberg.com/news/articles/2018-08-30/south-africa-s-july-budget-gap-is-biggest-in-at-least-14- years. 391. https://mg.co.za/article/2018-10-05-00-the-future-of-the-middle-class-is-bleak. 392. http://www.bloomberg.com/news/articles/2015-05-07/riots-signal-what-is-going-wrong-with-south-africa-s- economy. 393. https://www.moneyweb.co.za/news/economy/is-a-credit-downgrade-inevitable. 394. http://m.engineeringnews.co.za/article/imf-lowers-south-africas-economic-growth-forecasts-urges- reforms-2018-10-09. 395. https://www.bloomberg.com/news/articles/2018-09-26/south-africa-business-cycle-in-longest-slump-since-1945- chart. 396. IMF, South Africa: Selected Issues, 16 June 2016, pp 14-16 at https://www.imf.org/external/pubs/ft/scr/2016/ cr16218.pdf; Balance of payments manual (BPM5), (International Monetary Fund, Washington, D.C., 1993). 397. Anthea Jeffery, “The ANC govt’s war on economic rationality”, 27 March 2014 at http://www.politicsweb.co.za/ politicsweb/view/politicsweb/en/page71619?oid=579465&sn=Detail&pid=71616; http://www.economist.com/ blogs/baobab/2014/03/property-rights-south-africa. 398. https://monthlyreview.org/2019/01/01/south-africa-suffers-capitalist-crisis-deja-vu/. 96

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investor confidence”.399 Examples during the Under Zuma’s administration, public sector Zuma presidency include new regulations, policy wages, debt interest payments and welfare initiatives and legislation regarding investment, grants started accounting for roughly 60% of the expropriation, mining and energy, the security budget.404 Currently, it accounts for about 70% industry, affirmative action, black empowerment of the budget.405 In addition, according to South and land. President Ramaphosa’s support in African chief procurement officer, Kenneth Brown, 2019 for the policy of expropriation without as much as 40% of the country’s R600 billion compensation continues this trend. budget for goods and services is being eaten up by inflated prices from suppliers and fraud.406 During their implementation, these laws are Without sufficient new wealth-generating especially likely to enhance the opportunities activities, investment, savings and productivity, a for political and bureaucratic decision makers to risk of insufficient state income is looming. gain access to lucrative positions, or to engage in selective patronage. The prominent economist, Professor Jannie Rossouw, head of the University Moeletsi Mbeki, stated that the only agenda of the Witwatersrand’s School of Economics and of the ANC currently is “it is our turn to eat”.400 Business Sciences, with co-researchers Adele However, after 25 years of one-party dominant Breytenbach and Fanie Joubert referred to an rule, the state sources to satisfy important actors approaching fiscal cliff, “the danger that the South and constituencies have declined. African government might run out of income to cover growing government expenditure”.407 The ANC’s policies have included the overuse and Social grants, debt interest repayments and state abuse of civil service employment and SOEs, in jobs together would account for all government conjunction with profligate spending, corruption revenue by 2026 – assuming a high average annual and extreme consumption. Over the past decade revenue growth of between 9.7% and 9.9%. It is the number of civil servants has increased by currently at 1% per year. Even sharp increases in about 25%. One in five working people, roughly 2.7 personal tax, company tax, fuel levies and excise million people, now works for the government.401 duties would merely defer the fiscal cliff for two About 35% of South Africa’s R1.67 trillion budget or three years. or 14% of the GDP goes towards paying the salaries of public sector workers.402 The post- Political pressures to raise extra income for the 2000 period has generated a new labour elite in ANC, its cadre networks in the state structures the labour market, namely the unionised public and key constituencies will also increase in the sector employee.403 next few years.408 Intense factional competition in the ANC and its allies, and between the ANC

399. http://www.politicsweb.co.za/politicsweb/view/politicsweb/en/page71619?oid=579465&sn= Detail&pid=71616. 400. Andrew England, “Power failure”, Financial Times, 13 May 2015, p 7. 401. “The hollow state”, The Economist, 20 December 2015. 402. https://www.thesouthafrican.com/public-servants-pay-south-africa/. 403. https://theconversation.com/south-africas-civil-servants-are-the-countrys-new-labour-elite-54269. 404. R.W. Johnson, How long will South Africa survive? The looming crisis (Jonathan Ball Publishers, Cape Town, 2015), p 124. 405. https://ewn.co.za/2018/10/24/sa-govt-warned-over-huge-debt-burden. 406. http://businesstech.co.za/news/government/139193/shocking-levels-of-fraud-and-inflated-prices-cost-south-africa- r233-billion/. 407. Jannie Rossouw, “South Africa’s fiscal cliff: A different meaning to a well-know concept”, ERSA, 16-17 May 2013; “SA is headed for a financial cliff”,Financial Mail, 14 October 2014. 408. See for example http://www.bdlive.co.za/business/mining/2015/05/18/chamber-of-mines-comes-to-members- defence. 97

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and breakaway political or politicized opponents implements blackouts when it struggles to meet like the EFF and some trade unions, will reinforce the demand. These measures have had a huge these dynamics.409 impact on productivity and also on business morale in South Africa.414 State-owned enterprises (SOEs) The sectors using the most electricity are also the foreign exchange earners, namely non-ferrous SOEs with their billions in lucrative procurement metals; basic iron and steel; non-metallic minerals; budgets, are already at the heart of the ANC mining; paper and paper products; and chemicals. government’s economic policies and political According to Peter Montalto: patronage. Eight SOEs, including ESKOM, Transnet, Denel and SAA have massive debts, funding The problem is not its technical ability, but restraints, risks, rent extraction and governance the external political and ideological pressure issues. Especially ESKOM, but also other SOEs, that has slowed the process … As ever, the came to play a central role in serving as a conduit government seems to have too much time. to transfer government resources to well- 410 The knowledge to solve the ESKOM problem connected and corrupt individuals and families. is already within the government. Remove the Questionable, dubious and very expensive deals 411 politics, the tenderpreneurship and the cadre were being done at many parastatals. deployment.415

As a result, the SOEs have become an extreme Similarly, water supplies and water management liability on the Treasury and one of the chief have become major issues, with water crises obstacles to the aims of stabilising national debt emerging in Cape Town and elsewhere in the 412 and government finances. Companies like country.416 According to a visiting professor at the ESKOM and SAA claim that they are working to University of the Witwatersrand, Mike Muller, be less of a burden. However, prominent financial “the shenanigans in the water sector have little analysts like Nomura’s Peter Attard Montalto to do with radical economic transformation. They believe that the implicit exposure of these are more about the ongoing enrichment of a new companies to the country’s sovereign is much elite”.417 higher than stated.413 Anthony Turton, professor of Environmental The ANC government did not invest enough in Management at the University of the Free State, expanding its power generation capacity and says that South Africa had the necessary water neglected maintenance. It also did not respond skills, providing that institutions remained well- after earlier crises. ESKOM, which supplies funded and robust. However, there has been about 95% of the nation’s electricity, has since a systemic failure across the board. “What is 2015 been rationing its supply, because its aging happening in the water sector now as a system is plants cannot keep up with the demand. ESKOM almost a mirror of the energy sector failures”.418

409. http://today.moneyweb.co.za/article?id=466373&acid= Z254vWXulCUeZeuwhd4cWQ%3D%3D&adid=CxgRuNO6fqM eZeuwhd4cWQ%3D%3D&date=2015-04-22#.VXbCkssR673; http://sa-monitor.com/anc-youth-league-nationalisation- call-plunge-mining-deep-pit-bdlive-11-october-2016/. 410. https://www.sowetanlive.co.za/news/south-africa/2018-02-04-eskom-the-power-giant-at-the-core-of-south-africas- state-rot/. 411. http://mg.co.za/tag/parastatals; http://mg.co.za/article/2016-09-02-00-treasurys-bids-to-end-corruption-are- peeling-back-a-curiously-connected-gravy-trail. 412. http://mg.co.za/article/2016-10-28-00-fiscal-risk-beware-the-parastatals. 413. https://businesstech.co.za/news/government/189946/south-africa-likely-to-be-fully-junked-by-march-2018-analyst/. 414. http://www.bdlive.co.za/opinion/2015/04/14/eskom-lies-will-continue-over-ideology. 415. http://www.bdlive.co.za/opinion/2015/04/14/government-knows-eskom-solution-but-lacks-resolve. 416. https://www.dailymaverick.co.za/article/2018-01-22-analysis-a-drought-of-nature-compounded-by-a-drought-in- leadership/#.WmyJ4KjibIV. 417. https://mg.co.za/article/2016-12-05-south-africas-water-sector-a-case-study-in-state-capture. 418. https://www.dailymaverick.co.za/article/2018-01-22-analysis-a-drought-of-nature-compounded-by-a-drought-in- leadership/; https://mg.co.za/article/2018-02-02-00-capes-water-crisis-to-have-ripple-effect. 98

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The inability to provide basic electricity and water and political implications. Fundamentally, this services will have a major deterrent effect on reflects the lack of fixed investment spending many foreign investors. by the private sector, as well as the sustained low business confidence.420 Congested railways and ports controlled by SOEs have constrained exports. According to The Ramaphosa’s election as ANC president initially Economist, this situation removed an estimated provided a boost to local business confidence in percentage point from South Africa’s low annual the first quarter of 2018, which then dropped in growth. Ramaphosa has promised to clean up the rest of 2018.421 Unless there are real structural this state of affairs. However, several drivers improvements, South Africa will not be more will reinforce economic interventionism by ANC attractive to investors in the real economy and policy-makers in the next few years. These include sufficient job creation will not occur.422 economic stagnation and shrinking resources, the loss of access to sources of patronage after Bad business perceptions of the ANC the ANC’s local election losses, related risks and opportunities for current systems of patronage, government and factional struggles over fewer spoils. The role of the one-party dominated state in the economy During the ANC rule of 25 years, extensive is bound to remain strong. de-industrialization has occurred. In 1994, manufacturing accounted for 23% of GDP, which Staggering unemployment and is now at about 11%. High wage rates, high strike rates, a steep decline in labour productivity budget pressures and policies discouraging foreign and domestic investment all played a role. R.W. Johnson, liberal In the first quarter of 2018, Stats SA calculated analyst, now contends that South Africa can unemployment at more than 38%.419 Earlier in choose to have an ANC government or a modern 2017, Stanlib Chief Economist Kevin Lings stated industrial economy, but not both.423 Ramaphosa in a company note: has indicated that he wants to reverse this trend.

In addition, the unemployment rate for the This state of affairs is already reflected in foreign youth younger than 25, using the expanded business perceptions. The World Economic definition, is a shockingly high 67.4%. Clearly, Forum’s Global Competitiveness Index (GCI) for the rate of youth unemployed has become a 2017 to 2018 reflects the perceptions of domestic national crisis, with significant social, economic and international business.424 In terms of the

419. https://www.iol.co.za/business-report/economy/wef2019-addressing-youth-unemployment-high-on-sas- agenda-18907651. 420. http://www.fin24.com/Economy/youth-unemployment-in-sa-a-national-crisis-economists-20170807. 421. https://www.businesslive.co.za/bd/economy/2019-01-24-consumer-confidence-remains-flat-but-things-might-be- looking-up/. 422. https://www.businesslive.co.za/bd/opinion/editorials/2018-01-12-editorial-south-africas-challenges-are-now-even- greater/. 423. R.W. Johnson, How long will South Africa survive? The looming crisis (Jonathan Ball Publishers, Cape Town, 2015), p 158. 424. Klaus Schwab and Xavier Sala-i-Martin (eds), “The Global Competitiveness Report, 2017-2018”,World Economic Forum, https://www.weforum.org/reports/the-global-competitiveness-report-2017-2018, pp. 268-269. Compare Klaus Schwab (ed), “The Global Competitiveness Report, 2009-2010”,World Economic Forum 2010, p 283 at http:// www.weforum.org/reports/global-competitiveness-report-2009-2010 and Klaus Schwab and Xavier Sala-i-Martin (eds), “The Global Competitiveness Report, 2016-2017”,World Economic Forum, pp 324-325. 99

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overall GCI, South Africa ranks quite well, namely they require to operate.426 Nevertheless, both in position 61 out of 137 countries measured. local and international business have adapted However, it was a drop in the position from being the forms and extent of their investment in South in position 56 in 2016 to 2017. The GCI measure Africa accordingly. Foreign direct income (FDI) of South Africa’s competitiveness is also distorted projects in South Africa plunged by 31% in 2018 to favourably by its spectacular performance in a reach its lowest level in a decade.427 number of the GCI’s sub-components. These include aspects strongly shaped by the private EU businesses concerned about ANC sector, like auditing standards, efficacy of corporate boards and the availability of financial policies services. The Business Climate Survey 2016: EU Trade and In GCI sub-indices that measure business Investment in South Africa was published in 2017. perceptions of the government, South Africa fares This survey highlights several common concerns very poorly. For four years in a row, South Africa within the EU investor community. The outlook has had low scores for the diversion of public for South Africa as an investment destination is funds (position 109), with a major drop in the past rather negative: twice as many firms reported that year. This is also true pertaining to the perceived they were dissatisfied rather than satisfied. This is wastefulness of government spending (position a sharp drop in comparison to the results of the 103). In terms of organised crime, it dropped 2012 survey and a continuing trend with the 2014 significantly to position 122 out of 137 countries. results.428 For “business costs for crime and violence”, it is again in position 133. In terms of the reliability The 2016 survey asked the respondents to identify of the police, it is in position 118, a further drop the three biggest challenges for investment in from being in position 102 in 2015. South Africa South Africa. In addition to expressing an overall ranks in position 114 in terms of “public trust in declining investor confidence in the country, the politicians”, a further drop after already being key challenges that emerged were rising prices, in position 65 in 2009. It also is in position 89 in government corruption, and lack of skilled terms of “the burden of government regulation”. labour combined with BBBEE legislation. Investor In terms of “favouritism in the decisions of confidence in South Africa is further undermined government officials”, South Africa dropped to by inadequately functioning government being in position 127, a huge decline from being institutions. The respondents specifically pointed in position 69 in 2009.425 to the lack of transparency, inconsistent policies, as well as corruption. International media reports revealing self- enrichment and selective patronage by President Transformation emerged as the most negatively Zuma and his entourage have reinforced these perceived factor affecting South Africa’s perceptions. However, given the hybrid regime business climate. The cost and administration of dynamics, foreign business and local business not compliance with the BBBEE codes (the second aligned to the ruling ANC are reluctant to publicly biggest barrier to EU investment identified in the oppose harmful policies and practices. They are 2014 survey) is still expected to continue having unwilling to jeopardize the government licences a negative impact on foreign investment. EU

425. Klaus Schwab and Xavier Sala-i-Martin (eds), “The Global Competitiveness Report, 2017-2018”,World Economic Forum, https://www.weforum.org/reports/the-global-competitiveness-report-2017-2018, pp. 268-269. Compare Klaus Schwab (ed), “The Global Competitiveness Report, 2009-2010”,World Economic Forum 2010, p 283 at http:// www.weforum.org/reports/global-competitiveness-report-2009-2010 and Klaus Schwab and Xavier Sala-i-Martin (eds), “The Global Competitiveness Report, 2016-2017”,World Economic Forum, pp 324-325. 426. http://www.biznews.com/thought-leaders/2014/11/07/nomuras-peter-montalto-was-concerned-ahead-of-sa- research-visit-left-gloomier. 427. https://www.iol.co.za/business-report/economy/foreign-direct-investment-in-sa-at-decade-low-18460483. 428. See “Business climate survey 2016: EU trade and investment in Southern Africa” at http://www.euchamber.co.za/ surveys/. 100

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investors questioned the BBBEE’s overriding focus on ownership instead of the supply chain or skills In spite of the worsening investment outlook, development. In addition, the shortage of skilled many EU investors in South Africa have increased labour in South Africa made compliance with the their turnovers and created jobs in the past BBBEE management-related rules dificult.429 three years. South Africa continues to present certain advantages in comparison to other African “In this respect, members of the EU Chamber have countries and therefore remains a destination of reported that an increasing number of tenders by choice for regional headquarters and sales offices the SOEs in SA include a requirement of 51% black of many EU companies with operations in Sub- ownership for their suppliers,” Stefan Sakoschek, Saharan Africa.432 the chamber’s national executive director said. He said the chamber had been informed that Domestic business: Increased “such a discretionary measure lacked sound legal basis” as it would require pre-approval from the distrust and divestment Department of Trade and Industry (DTI), based on appropriate studies examining the skills level and The relations between local business and the other market dynamics in respective commercial ANC government deteriorated during Zuma’s sectors. European companies were now faced presidency. In April 2016, Ann Bernstein confirmed “with surprising new rules” in relation to crucial that tender procedures. “This has already caused investments to be put on hold or downscaled”.430 … a dysfunctional relationship between business and government that manifests failings on both The emphasis of both Zuma and Ramaphosa sides, but has its roots in deep suspicion about on radical economic transformation may thus business and markets, flourishes in and around reinforce the negative outlook of EU investors the governing party. South Africa cannot hope over time. Two-thirds of respondents expected to achieve growth while simultaneously being a further deterioration in corruption within anti-business. The slide into crony capitalism the government and regulatory authorities. makes matters considerably worse.433 Respondents have difficulties with the government responsiveness and accessibility to The balance between high taxes and an government oficials. The respondents have largely appreciation of the benefits that this brings, is not mixed perceptions about issues of investment evident to wealthier South Africans.434 Meanwhile, protection and taxation with the highest degree the degree of capital flight among short-term of uncertainty around investment protection and portfolio investors has resulted in Central Bank local intellectual property rules.431 It remains to be warnings.435 Andrew Rissik, the managing director seen whether Ramaphosa will be able to overturn of foreign currency trading at Sable Group, a these negative perceptions. London-based money manager, has linked the

429. See “Business climate survey 2016: EU trade and investment in Southern Africa”, p 30 at http://www.euchamber. co.za/surveys/. 430. https://www.businesslive.co.za/fm/features/2017-04-21-eu-to-bee-or-not-to-bee/. 431. “Business climate survey 2016: EU trade and investment in Southern Africa”, pp 28-29 at http://www.euchamber. co.za/surveys/. 432. https://www.businesslive.co.za/bd/business-and-economy/2017-03-24-surprising-new-rules-on-empowerment-are- holding-investors-back-says-eu-chamber/. 433. Ann Bernstein, “Harsh choices await if we continue down the low road”,Business Day, 7 April 2016; http://www. biznews.com/thought-leaders/2014/11/07/nomuras-peter-montalto-was-concerned-ahead-of-sa-research-visit-left- gloomier/. 434. https://businesstech.co.za/news/business/218475/taxing-south-africas-rich-will-only-chase-them-away/. 435. “South Africa’s central bank warns of capital flight risk” at http://online.wsj.com/news/articles/SB100014240527023 04518704579520901590608912.

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trend to increasing political risk: “Poor decisions policy is not working and that the process of de- by (Mr) Zuma and the ruling party triggered a industrialization of past years is continuing.443 widespread urge to move assets abroad”.436 The economist Mike Schüssler also commented: Since 2016 to 2018, for the first time in many decades, the value of South African-owned assets One top firm after another is chasing outside of the country had exceeded the annual opportunity elsewhere. Our top 60 companies flow of funds into it. Many of its own citizens now earn 70% of their turnover outside of preferred to send their money out of the country, South African borders. In effect, they have left rather than to invest locally.437 and South Africa is just another market.444 The University of Johannesburg’s Centre Ramaphosa’s limping policy reach for Competition, Regulation and Economic Development estimates that the top 50 companies President Ramaphosa’s limited control over the listed on the Johannesburg stock market are factionalized ANC will remain the case until at least sitting on 1.4 trillion rand ($105 billion) of cash after the general elections of 2019, and probably – nearly six times the amount in 2005, as the beyond.445 The limits to his control will also impact abstention from investment continues.438 Since negatively on his ability to control the negative 2013, business confidence has been on a declining fallout, more factional and radical demands, and trend from above 50 to the current level below 35 land invasions as a result of weaker property rights in 2017.439 and expropropiation without compensation. The ANC has either underestimated the degree As Roger Southall, professor of Sociology, to which companies have opportunities to go University of the Witwatersrand, has remarked, elsewhere than South Africa, or it does not care the obstacles in the way of Ramaphosa’s path are too much.440 For many companies, the best formidable. opportunities in mining and manufacturing no longer are in South Africa.441 Major companies have already considered hiving off their South Ramaphosa is already battling concerted fight- African assets, or have actually done so.442 Even back by the Zuma crowd, and this is only the senior government officials have admitted that, beginning … In any case, increasingly the ANC with some exceptions, South Africa’s industrial has come to function as an extended patronage,

436. “Politics pushes more money out of SA”,Business Day, 13 April 2016. 437. http://www.biznews.com/sa-investing/2016/01/06/capital-flight-plunging-rand-more-sa-owned-assets-abroad- than-flowing-in/; http://derstandard.at/2000027849282/Praesident-Zuma-als-Belastungsprobe-fuer-Suedafrikas- Wirtschaft. On the major net outflows of capital since 2014, also see http://unctad.org/Sections/dite_dir/docs/ WIR2017/wir17_fs_za_en.pdf. 438. https://www.ft.com/content/12b8a5d8-78f0-11e7-90c0-90a9d1bc9691. 439. https://mg.co.za/article/2018-01-24-shaking-up-eskom-matters-for-south-africas-economy. 440. Also see http://www.bdlive.co.za/business/trade/2015/05/07/bee-code-change-shocks-industry;http://www.bdlive. co.za/opinion/2015/04/20/why-new-bee-codes-will-pull-the-rug-from-under-business. 441. http://www.biznews.com/video/2014/07/29/must-watch-invicta-holdings-arnold-goldstone-true-impact-numsas- strike/. 442. http://www.biznews.com/video/2014/09/11/what-crisis-rob-davies-shrugs-off-sa-corporate-flight-says-foreigners- investing/. On the issue of company actions to reduce their risk, also seehttp://www.miningweekly.com/article/ major-south-african-assets-fail-to-make-the-cut-in-bhp-billiton-portfolio-remake-2014-08-15; http://www.reuters. com/article/2013/02/08/safrica-goldfields-idUSL5N0B86R420130208; http://www.miningmx.com/page/opinion/ columnists/1474694-Selling-SA-gold-mines-is-strategy-of-last-resort. 443. http://m.engineeringnews.co.za/article/south-africa-continues-on-path-of-deindustrialisation-2017-10-05/rep_ id:4433. 444. http://www.moneyweb.co.za/moneyweb-opinion/welcome-to-the-decline-south-africa/#.VkLfDu9ILUc.facebook. 445. https://www.dailymaverick.co.za/article/2018-11-05-anc-necs-major-indecision-and-authority-problem/. 102

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jobs and cash machine. Hopefully, Ramaphosa In November 2018, rating agency Moody’s warned and his team will prove capable of cleansing that South Africa faced heightened risks due to the upper reaches of the state. But, carrying weak institutions, unpredictable domestic politics the fight downwards, into the provinces and and geopolitical risk. Alastair Wilson, Moody’s local government, will simultaneously mean managing director for global sovereign risk, reforming the ANC. That may well prove beyond said South Africa also had below-trend growth the bounds of practical politics, especially prospects: given that Ramaphosa himself will need to maintain his support base for an attempt at a second term as president. A more likely second South Africa’s vulnerability similarly option, therefore, is that even if Ramaphosa reflects high reliance on external does a reasonably decent job, the economy capital (though mainly denominated in will at best enjoy only slow rates of growth and improvement. Overall, it will do little more than local currency), set against a context limp along, if not actually decline.446 of a moribund economy, high inequality Ramaphosa has tried to restore business and political stasis ahead of the 2019 confidence with a drive to gain investment, a presidential elections.448 stimulus package and an economic recovery plan designed to reignite economic growth. However, the wheels of South Africa’s economy are not The need to tread carefully turning and there is simply no money to fund new, productive investments to stimulate growth. The Political pressures to raise extra income for the money markets have not ended the South African ANC, its cadre networks in the state structures rand’s slide by 20% in value against the dollar in and key constituencies will remain high in the next 2018, and economists have remained sceptical: few years. Factional struggles, political uncertainty “The true test will be how much of the stimulus and shrinking resources will reinforce economic package Ramaphosa will be able to implement, interventionist measures by ANC policymakers. how quickly it can be implemented and whether Under budget pressures, the ANC government we can get economic growth from it,” according to will try to raise extra income in the form of taxes, Citibank economist, Gina Schoeman. licence fees and other means. Unorthodox actions and rules of the game may also emerge as a result. Daniel Silke, director of the Political Futures Consultancy, has stated that any implementation Policy incoherence and unexpected twists will of a stimulus package hinges on whether the often reflect phases in factional competition and government is able to run itself. “What is the state newly-bargained advantages and alignments, of the bureaucracy? Are there officials within the rather than ideological vacillation. Policy swings state that are patronage-focused, rather than and uncertainty will be experienced most by performance-focused? How do you clean out that companies in those sectors most exposed to the philosophy of patronage to make the state more government’s political priorities or regulatory effective? There are still big question marks that and licensing power. Minerals, energy, security, remain before talking about a stimulus.” Tanya agriculture, telecoms and pharmaceuticals would Cohen, CEO of Business Unity South Africa, has be among these sectors. stated that business does not expect the stimulus package to be a panacea for the country’s economic shortfalls.447

446. https://ewn.co.za/2018/11/07/opinion-can-the-centre-hold-or-will-south-africa-get-its-own-bolsonaro. 447. https://www.moneyweb.co.za/news/south-africa/why-markets-snubbed-ramaphosas-stimulus-plan/?utm_ source=Moneyweb&utm_campaign=96a6825dcc-EMAIL_CAMPAIGN_2018_09_25_04_10&utm_ medium=email&utm_term=0_b106a40770-96a6825dcc-213156865&mc_cid=96a6825dcc&mc_eid=31a093eb05. 448. https://www.iol.co.za/business-report/economy/moodys-sounds-warning-alarm-for-sa-emerging-market- peers-17797452. 103

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The Gupta scandals have gone global.449 The FBI Business will often have difficulty in establishing has begun a probe into US ties to alleged corrupt whether extra state revenue is actually spent on transactions involving the Gupta brothers. In the improving the infrastructure or conditions of all UK, the Financial Conduct Authority, the Serious citizens, or on subsidizing the ANC’s patronage Fraud Office and the National Crime Agency are all and reinforcing its one-party dominance in investigating allegations that HSBC and Standard a hybrid regime … There are different codes Chartered handled illicit funds. The scandal has of conduct in different jurisdictions, and entangled some of the biggest multinational international business would need to heed companies, damaging the reputation of, amongst best practices regarding integrity risk and others, McKinsey, KPMG and SAP.450 reputational risk.451

South African Monitor reports have given clear This advice will remain valid in the years to come. advice to international business since 2014:

449. https://www.ft.com/content/707c5560-d49a-11e7-8c9a-d9c0a5c8d5c9. 450. https://www.businesslive.co.za/bd/opinion/columnists/2018-01-18-hilary-joffe-overseas-firms-treading-sas- minefield-need-to-know-what-the-bombs-look-like/; http://www.handelsblatt.com/unternehmen/dienstleister/ korruptionsverdacht-suedafrika-fordert-millionen-von-mckinsey-zurueck/20856860.html. 451. See South African Monitor, (3), 2014, pp 47-49 and South African Monitor reports of 2015 and 2016. 104

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Part XI The threat to property and investor rights

ANC weakened European investor investment”. Foreign diplomats, usually reserved, have started to voice their concerns in private and protection in public.452

Since 2013, several ANC-directed business bills Carol O’Brien, executive director of the American and acts have increased distrust and concern in Chamber of Commerce in South Africa, stated foreign and domestic business circles. A headline in February 2015 that the plethora of legislation in The Economist of 27 March 2014 was clear: coming out of South Africa is causing “jitters” “Bashing business for votes: New legislation may in US businesses with operations based in the save the ANC votes but will chase away foreign country.453 The chamber represents almost 40% of

452. http://www.economist.com/blogs/baobab/2014/03/property-rights-south-africa; http://online.wsj.com/news/ articles/SB10001424052702303948104579537802749237362; http://www.polity.org.za/article/businesses-brace- for-transformation-pressures-as-elections-loom-2014-04-08; http://www.bloomberg.com/news/2014-04-14/anc- adopts-laws-before-vote-that-may-hurt-south-african-business.html; http://www.bdlive.co.za/business/2014/03/09/ diplomats-break-silence-on-investment-bill. 453. http://www.bdlive.co.za/economy/2015/02/20/barrage-of-new-laws-alarms-us-firms-in-sa. 105

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the six hundred US companies with operations in of SAFRI to the cancellation encapsulates the key South Africa. She said that the stream of legislation objections of European business to the policy: did not send a message that foreign investment was welcome in South Africa. The Southern Africa 1. Compared to the terminated BIT, the Initiative of German Business (SAFRI), one of the Promotion and Protection of Investment main German business associations looking at the Bill (PPIB) does not provide a guarantee for interests of about six hundred German businesses the fair and equitable treatment of foreign in South Africa, has expressed dismay over the investment. Changes in the legal framework direction of economic policy.454 conditions to the disadvantage of investors are possible at any time and might have the Following costly arbitration claims brought effect that both the investment protection against South Africa by European investors, the and possible claims for compensation are Zuma administration decided in 2010 to stop cancelled. signing bilateral investment treaties (BITs). The 2. According to the wording of the bill the legal Department of Trade and Industry has, since protection of investments only comprises such 2012, undertaken a targeted termination of all 13 cases in which there is a direct expropriation. treaties with European states, replacing them with Measures having an equivalent effect to the Promotion and Protection of Investment Bill expropriation are, however, not comprised, (PPIB). The department has not terminated the so that in such cases – contrary to the BIT – a equally restrictive treaties that protect Chinese claim for compensation is not provided for. and Russian investors in South Africa.455 3. In contrast to the BIT, compensation payments in cases of expropriations can be Where treaties are terminated, the foreign below market value, as the basis for any investors currently protected by them may have decision is the general provision of fair and no remedy against damaging policy changes. They equitable compensation, which reflects the are also likely to receive less than the “prompt, consideration of both public interests and adequate and effective” compensation promised the interests of the parties concerned, and by the treaties.456 not the market value. 4. The PPIB envisages the recourse to national The new Investment Bill or PPIB was approved by arbitral jurisdiction and arbitral tribunals, Parliament and signed into law by President Zuma whereas the access to international at the end of 2015. In terms of this law, the rights arbitral tribunals is neither explicitly of foreign and domestic property owners have mentioned nor allowed. However, for been much reduced. The PPIB is supposed to apply international investors, the objective and equally to foreign and domestic investors. “This neutral settlement of disputes according to bill is part of a worrying trend that South Africa’s international law is an important element in protection of private property is weakening,” investment decisions.458 stated Carol O’Brien in 2015.457 Foreign companies may in fact receive zero South Africa is Germany’s most important trading compensation if a taking of property by the state is partner on the African continent. The response not recognised as an “act of expropriation” under

454. http://www.dw.de/german-corporate-unease-in-south-africa/a-18078269; http://www.badische-zeitung.de/ ausland-1/steinmeiers-vergebliche-visite-am-kap--95122906.html. 455. Ben Winks, “Investors pawns in political power play”,Business Day, 19 April 2016. 456. http://mg.co.za/article/2013-11-01-swiss-govt-reacts-to-termination-of-bilateral-investment-treaty-with-sa; http:// www.bdlive.co.za/business/2014/03/09/diplomats-break-silence-on-investment-bill. 457. https://www.bloomberg.com/news/articles/2015-11-17/south-african-lawmakers-approve-foreign-investment-bill. 458. Southern Africa Initiative of German Business, South Africa: New Legal Framework for Direct Investments, 2014, pp 1-2 at www.safri.de. 106

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the PPIB. According to Matthias Boddenberg, According to him, several will have a major impact CEO of the South African-German Chamber of and there is concern over the ambiguous nature Commerce and Industry, the PPIB would raise the of the legislation.462 investment risk of German companies, as well as the risk insurance premiums they would need to Weakened property rights463 pay.459 German exports for the past decade show an upward curve. However, German investment Under the PPIB, signed by President Zuma into in South Africa remains subdued, largely caused law in December 2016, expropriated owners will by the political uncertainties and the general receive less than market value and will have no right economic situation. to damages for consequential loss. One danger in the law is that domestic property owners will be Stefan Sakoschek, the executive director of confined to “just and equitable” compensation the EU Chamber of Commerce in South Africa, falling somewhat short of market value. An even told parliamentarians during public hearings in greater danger is that such property owners will September 2015: receive no compensation at all. We are aware of a number of projects that According to analyses of Senior Advocate Martin are pending due to the degree of uncertainty Brassey and policy analyst Doctor Anthea related to the investment framework … The Jeffery,464 this danger stems from a key clause in withdrawal of SA’s (bilateral treaties) with EU the legislation stating that various actions “do member states has sent an alarming message not amount to acts of expropriation”. There will to the EU business community regarding the thus be no expropriation where the state’s actions standard of protection of investments. The new result “in the deprivation of property”, but “the bill does not sufficiently allay those concerns.460 state does not acquire ownership” and “there is no permanent destruction of the economic value In May 2016, Sakoschek stated that the conditions of the investment”.465 for investing and doing business in South Africa were “very different”, compared to the period This situation could arise, for example, where the when bilateral treaties still protected businesses. state takes commercial farmland under claim as According to Sakoschek, political instability and “custodian” for land claimants, and then invites regulatory uncertainty was forcing European firms them to apply to it for licences to use portions to reconsider investing in the country. The rules for of this land for specified periods. In these investing in South Africa appear to be changing too circumstances, commercial farmers would be quickly and too drastically.461 In September 2017, deprived of their property, but the state would Sakoschek again expressed deep concern over the acquire it as custodian, rather than as owner – large number of bills affecting foreign business.

459. http://www.marktundmittelstand.de/zukunftsmaerkte/ppib-deutsche-firmen-fuerchten-um-standort- suedafrika-1233191/. 460. http://www.bdlive.co.za/economy/2015/09/10/investment-bill-may-cause-investor-flight-eu-firms-warn. 461. “Rules for investing in SA changing too drastically and too quickly”,Moneyweb , 31 May 2016. 462. http://www.ftwonline.co.za/article/126293/Pending-legislation-unsettles-EU-business/66. 463. The analysis of the PPIB’s contents is heavily indebted to the analyses of Doctor Anthea Jeffery of the SAIRR and Advocate Martin Brassey, SC, as reflected in the sources quoted. Also see http://www.bdlive.co.za/ opinion/2013/06/10/bills-threaten-the-property-rights-of-all-south-africans; http://www.politicsweb.co.za/ politicsweb/view/politicsweb/en/page71639/page71619?oid=579465&sn=Detail&pid=71619. 464. http://www.bdlive.co.za/opinion/2013/06/10/bills-threaten-the-property-rights-of-all-south-africans; http://www. politicsweb.co.za/politicsweb/view/politicsweb/en/page71639/page71619?oid=579465&sn=Detail&pid=71619. Also see “Concourt ruling, new Investment Bill could give government sweeping powers to take property without compensation”,Polity , 19 May 2014; Martin Brassey, “The ANC govt’s property rights grab”,Politicsweb , 22 July 2014. 465. http://www.sabinetlaw.co.za/economic-affairs/legislation/promotion-and-protection-investment; http://www.saiia. org.za/opinion-analysis/draft-investment-bill-requires-amendment;http://www.bdlive.co.za/opinion/2013/06/10/ bills-threaten-the-property-rights-of-all-south-africans. 107

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and there would be “no permanent destruction When Chief Justice Mogoeng handed down the of the economic value” of the land, which would ruling on Sebenza’s rights, two judges of the continue to be farmed by others. This means Constitutional Court, Johan Froneman and Johann there would be no “act of expropriation” under van der Westhuizen, disagreed with the majority’s the principles established by the PPIB. As a result, conclusion that no expropriation had taken place. no compensation would be payable. They also cautioned against the implications of Judge Mogoeng’s ruling. According to the judges, Constitutional Court neutralized the ruling could lead to “the abolition of the private ownership of … all property” without the payment property rights clause in of any compensation. “Any legislative transfer of property from existing property holders” would no Constitution longer be “recognised as expropriation” if it was “done by the state as custodian of the country’s The wording of this provision can be traced back resources”, they said.468 to a majority judgment of the Constitutional Court in April 2013. This ruling was made by Chief Justice Mogoeng Mogoeng, an appointee of President Disempowered international and Jacob Zuma.466 The ruling was concerned with South African property owners whether expropriation had occurred when an unused and unconverted private mining right Government could use the PPIB’s rules to take “ceased to exist” under the Mineral and Petroleum further measures to vest all mining land, mining Resources Development Act (MPRDA) of 2002. equipment and other mining assets in the state as the custodian of the nation’s mineral Judge Mogoeng found that Sebenza Property resources. Simultaneously, it could invite black- Limited, which used to own the coal mining right owned businesses in particular to apply to the in issue, had suffered a “compulsory deprivation” Department of Mineral Resources for a licence to of its right under the MPRDA. In addition, “the use a portion of these assets for a specified period. custodianship” of this resource was now “vested in If past experience is any guide, the businesses that the state on behalf of the people of South Africa”. benefit, would usually be tied to supporters of the However, the state had not acquired ownership ANC, and not to political opponents thereof. of the mining right. Instead, it was simply a “custodian” or “conduit” through which “broader Similar measures, intended to generate a similar and equitable access to mineral resources could outcome, could be taken as regards all other 467 be realised”. “investments” covered by the PPIB. These are broadly defined to include companies; equities; The chief justice ruled that since the deprivation land; movables; and intellectual property; of ownership from Sebenza had not been matched along with mining rights and similar “licences, by the acquisition of ownership by the state, no authorisations, or permits … to carry out expropriation had taken place. It followed that no economic and commercial activities”. Moreover, compensation was payable. Echoing this judgment, the PPIB applies equally to domestic and foreign a key provision in the PPIB states that various investors, for the need to ensure equal treatment actions “do not amount to acts of expropriation”. for both categories of investor is a key theme of Among the actions it lists, are “measures which the measure.469 result in the deprivation of property, but where the state does not acquire ownership of such property”.

466. http://mg.co.za/article/2011-08-16-zuma-picks-mogoeng-as-chief-justice. 467. Anthea Jeffery, “The ANC govt’s plan for expropriation on the sly”,Politicsweb , 25 February 2014; Martin Brassey, “The ANC govt’s property rights grab”, Politicsweb, 22 July 2014. 468. Anthea Jeffery, “The ANC govt’s plan for expropriation on the sly”,Politicsweb , 25 February 2014; Martin Brassey, “The ANC govt’s property rights grab”, Politicsweb, 22 July 2014. 469. Anthea Jeffery, “The ANC govt’s plan for expropriation on the sly”,Politicsweb , 25 February 2014; Martin Brassey, “The ANC govt’s property rights grab”, Politicsweb, 22 July 2014. 108

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The PPIB’s reference to “investors” is also (especially if those who design the scheme misleading, for it suggests that the new law will are not catastrophically incompetent and/or apply solely to companies and other commercial dumb)… If the executive was crafty enough, enterprises. In fact, the law will apply to everyone, and if it was well versed with the Constitutional including “natural persons” and “regardless of Court jurisprudence (neither of which one nationality”.470 The law gives the state the power can assume to be the case), it might well to take measures to acquire property of virtually devise a scheme that would have the effect any kind as “custodian” for the poor, and without of diminishing the actual pension benefits of the need to pay any compensation. salaried employees, without falling foul of section 25(1).473 The Restitution of Land Rights Amendment Act came into force in July 2014, reopening the land Creeping state ownership in the claims window and causing uncertainty about investment in agriculture. In May 2016, Parliament mining and energy sectors approved the Land Expropriation Bill, which indicate the requirements for the state to lay According to a survey published by the Chamber claim to land for public purposes or in the public of Mines in December 2017, based on 16 member interest without the owner’s consent. The term companies, the uncertain policy and regulatory “property” in the Bill was not defined as referring environment had caused the mining industry to to land only, meaning it was open to interpretation freeze investment on new projects. The estimated and could lead to movable property like shares planned capital spending of R145 billion in mining and intellectual property being expropriated. The could increase by R122 billion or 84% in a more Bill will now be sent to the president to be signed stable and conducive environment, the survey into law.471 found.474

The ANC is promising that if it is re-elected, the Among the changes has been the amended government will investigate the possibility of Mineral and Petroleum Resources Development passing legislation that would require financial Amendment Bill of 2013 (the Mining Bill), which institutions that invest the pension money of was approved by the National Assembly on most salaried workers, to invest part of the funds 1 November 2016.475 The Mining Bill also applies to in “prescribed assets”, presumably government- offshore oil and gas exploration and production.476 controlled assets. If the government would force retirement funds to “invest” 50% of all retirement The law gives the minister of Mineral Resources money in failing and corrupt SOEs,472 the question unprecedented discretionary powers in many arises whether a constitutional challenge to such spheres. It gives the state a 20% “free carried a move would be successful. interest” (or free stake) in all new ventures of this kind. It “entitles the state to a further participation Constitutional Law expert Pierre de Vos stated: interest” of an unspecified percentage, to be attained either via “acquisition at an agreed price” The short answer is that it might not be that or through a “production sharing agreement” easy to succeed with a constitutional challenge obliging the petroleum company in question to

470. “A new Expropriation Bill by another name”,Liberty , 25 February 2014, p 5; http://www.miningweekly.com/article/ top-lawyers-warn-of-mining-bills-devastating-consequences-2013-09-13. 471. http://mg.co.za/article/2016-05-26-parliament-approves-land-expropriation-bill. 472. For the section on SOEs, see Part X. 473. https://www.dailymaverick.co.za/opinionista/2019-01-17-is-the-government-coming-for-your-pension-and-would- this-be-unconstitutional/. 474. https://www.businesslive.co.za/bd/economy/2018-01-16-mining-output-accelerated-more-than-expected-in- november-2017/. 475. http://www.lexology.com/library/detail.aspx?g=e4cc1739-49a3-41e1-98e0-5d97cb86d704; http://allafrica.com/ stories/201612050901.html. 476. http://www.miningweekly.com/article/local-mining-industry-still-in-doldrums-economists-2016-12-08/rep_id:3650. 109

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“share ... the extracted resource” with the state. BEE targets stipulated in the mining charter shall An earlier version of the bill put this additional be applicable throughout the lifespan of mines. interest at 30% and expressly limited the state’s The charter increased the level of capital goods potential stake to a maximum of “50% per procurement from BEE-compliant companies to petroleum operation”. Now, the state can demand 60% from 40%.479 as much as an 80% additional share, over and above its 20% free share. The new Mining Charter III published in 2017 increased the uncertainty in the sector. It Oil and gas companies will find it difficult to proposed an increase in black ownership targets negotiate an accurate price. They will be required to 30%; the creation of more onerous ownership to pay 100% of the costs of developing new requirements for suppliers to the industry; projects, but will receive only 80% of the profits. and demands that research and development This means that only projects that can fund the should be focused locally, ideally at previously government’s 20% free ride will be developed.477 disadvantaged universities.480 The Mining Charter agreed on in late 2018 indicated a continued Business Day, the premier business publication in emphasis on black economic empowerment. For South Africa, previously commented: existing mines however, the minimum of black ownership now stays at 26% for the duration of (T)he Mineral and Petroleum Resources existing mine rights. New mining right holders will Development Amendment Bill allows need 30%. There now is no required increase in government to “cherry-pick”, forcing producers the final draft if it has met the previous metrics laid to sell all of their most profitable projects out in the 2010 Mining Charter. A mining project to the government. They must do this at an that was launched following the publication of the “agreed price” rather than a market price. 2018 version must meet new, higher standards. This means companies can never recoup the The option of paying “equity-equivalent” benefits costs of exploration or of unprofitable projects. to local communities has been added.481 The consequences are obvious. Under such conditions companies will not explore in South Mining Charter III’s acceptance by the government Africa. Nor will they develop projects they know in late 2018 was the culmination of months of the government will nationalise.478 intensive engagements with stakeholders in the industry, including mining companies, investors, In April 2016, the Department of Mineral Resources mining communities, labour, financial institutions, released a revised mining charter that demands a as well as the legal fraternity. The withdrawal of perpetual minimum of 26% black ownership per the MPRDA Amendment Bill and the ongoing mining right. The charter was drawn up without development of a separate regime for oil and gas consultation with the industry. Many companies resources, demonstrated that extensive lobbying have complied with this requirement, but BEE by business may still improve policy certainty partners have exited, taking their profits, or the and create an environment that is conducive to previous BEE partner has transferred shares to a investment.482 non-BEE company. The charter now states that all

477. http://mg.co.za/article/2013-09-13-experts-stakeholders-grill-proposed-changes-to-mining-laws. 478. http://www.bdlive.co.za/opinion/columnists/2014/03/31/a-hard-ask-for-business-to-criticise-government. 479. “Department blindsides miners with new charter”, Business Day, 15 April 2016. 480. https://www.moneyweb.co.za/moneyweb-opinion/soapbox/mining-industry-hopes-that-the-new-broom-sweeps- clean/. 481. https://www.mining-technology.com/features/the-final-shape-of-south-africas-new-mining-charter/; https://www. bloomberg.com/news/articles/2018-10-02/south-africa-s-latest-mining-charter-what-s-new-and-who-wins. 482. http://www.miningweekly.com/article/policy-certainty-lifts-sentiment-safety-slips-and-a-challenging-2019- forecast-2018-12-14. 110

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However, it remains to be seen whether a new ANC less on legislating the companies and more on government will be able to provide the longer- regulating them as businesses. This would mean term policy certainty that the mining industry that the sector would be subject to government’s requires for its projects of long-term investment. “transformation” strategies and discouraging The investment actions by mining companies foreign investment in favour of South African reflect that many are doubtful whether current ownership.484 These clauses would be in violation political dynamics favour such policy certainty. of South Africa’s commitments under the General Agreement on Trade in Services (GATS) of the Increased state ownership and World Trade Organisation (WTO). control of the lucrative security According to Stefan Sakoschek, the director of the EU Chamber of Commerce and Inustry in industry Southern Africa, the Private Security Industry Regulation Amendment Bill currently is a priority ANC attempts at other forms of creeping concern. “Our concern is that it introduces the expropriation can be expected in the hybrid topic of nationalisation again. The legislation gives regime in the next decade. The Private Security power to the minister of Police to expropriate up Regulation Amendment Bill of 2013 (alias the to 100% of a foreign-owned security company. Security Bill) was adopted by Parliament in The bill also allows for foreign ownership of local February 2014 and is to be signed into law. A private security companies to be limited.” He provision reintroduced in the closing stages of said in terms of the legislation the definition of a the parliamentary process requires that “at least security company was extremely broad in the bill. 51% of the ownership and control” of security “We have many companies that manufacture and companies must be “exercised by South African import security products into South Africa and citizens”. Foreign-owned companies will be forced this bill could impact on them negatively.”485 to sell 51% of their shares to South Africans. It remains to be seen how Ramaphosa’s ANC The clause on expropriation speaks of a minimum government deals with this issue. However, as in of 51% local ownership, but leaves it up to the the other sectors covered in this report, the ANC minister of Police to decide on a higher figure. is likely to promote extensive local ownership in Both the South African Chamber of Commerce the security industry, which will also maintain or and Industry (SACCI) and the Security Industry create opportunities for its politics of patronage. Alliance (SIA) have requested Zuma not to sign this bill.483 There are concerns that the bill is focused

483. http://www.bdlive.co.za/national/2014/06/19/business-groups-urge-zuma-not-to-sign-disputed-bill-on-private- security; http://www.issafrica.org/iss-today/are-foreign-owned-private-security-companies-a-threat-to-south- africas-national-security; http://www.prweb.com/releases/2014/06/prweb11907317.htm. 484. https://businesstech.co.za/news/business/175651/new-laws-could-mean-the-end-of-private-security-as-we- know-it-in-sa-report/; http://city-press.news24.com/Business/Private-security-amendment-bill-the-enemy-of-SA- economy-20151009. 485. http://www.ftwonline.co.za/article/126293/Pending-legislation-unsettles-EU-business/66. 111

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Part XII Expropriation without compensation and weaker civil rights

The ANC turns to expropriation sub-committee head of economic transformation, Enoch Godongwana, said the conference agreed without compensation that the Constitution should be amended to achieve expropriation without compensation. The One of the key policy decisions at the ANC National Water Act of 1998 had already made conference in December 2017 was on the ANC government the “public trustee of the expropriation of land without compensation. The nation’s water resources”.486 However, the policy

486. https://www.dwa.gov.za/Documents/Publications/NWAguide/part1.pdf. 112

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had previously been advocated mainly by the Racial populism to divert attention radical socialist EFF, an ANC breakaway party.487 from ANC failures The ANC announced in February 2018 that it plans to expropriate mostly white-owned farms without Former President Thabo Mbeki’s foundation compensation. President Ramaphosa announced stated in a leaked internal paper that the ANC has on 31 July 2018 that the ANC will even try to change abandoned its historical values on non-racialism the Constitution to support such expropriation through its framing of the land reform debate as without compensation. On 22 August 2018, one of black versus white. The paper points to Ramaphosa confirmed that urban land would also comments by former President Jacob Zuma in be covered by the ANC’s expropriation policies.488 Parliament in February 2018 when he called on “black parties” to unite to obtain a two-thirds On 15 November 2018, Parliament’s Joint majority to amend the Constitution to allow for Constitutional Review Committee adopted a report land expropriation without compensation. that recommends that the wording of Section 25 of the Constitution be changed to explicitly allow for expropriation without compensation. Jacob Zuma was advancing a President Ramaphosa made the announcement perspective about the “resolution of the re the amend of the Constitution even before the public participation process about expropriation national question” radically different without compensation had been finalised.489 A from the long-established and historic defective consultation process in the run-up to position of the ANC as part of this the report means that any amendments could … be challenged in court.490 However, this step also he [Zuma] also made bold to change the reflected the dynamics of one-party dominant very nature of the ANC, characterising rule and a hybrid regime. it as a “black party”. The report of the parliamentary committee will now be referred to the National Assembly for The current position expressed by some leaders approval, which is likely, given the ANC majority of the ANC on land expropriation without compensation shows that they have “accepted” and support from the socialist EFF. Parliament 492 must establish the mechanism for the drafting of to be led by the EFF on the matter. the constitutional amendment, be that a special ad hoc committee, or an existing one, in a process Political economist Moeletsi Mbeki said in this that would entail further public hearings. It is as regard: yet uncertain whether this will occur before the national elections scheduled for 8 May 2019.491

487. Susan Booysen, Dominance and decline: The ANC in the time of Zuma (Wits University Press, Johannesburg, 2015), p 229. 488. https://www.enca.com/news/urban-land-will-be-expropriated-ramaphosa. 489. https://www.dailymaverick.co.za/opinionista/2018-07-02-the-farce-of-public-consultation-on-land-expropriation- without-compensation/; https://www.news24.com/SouthAfrica/News/land-the-people-speak-tensions-simmer- in-pietermaritzburg-20180720; https://www.news24.com/SouthAfrica/News/land-the-people-speak-we-are-all- africans-rustenburg-residents-told-20180719. 490. https://businesstech.co.za/news/government/284258/south-africas-land-seizure-debate-what-farmers-banks-and- citizens-have-to-say/. 491. https://www.dailymaverick.co.za/article/2018-11-13-expropriation-without-compensation-is-a-done-deal-all-thats- left-is-the-formalities/. 492. https://www.businesslive.co.za/bd/national/2018-09-25-thabo-mbeki-decries-divisive-anc-land-approach/. 113

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This is not about land. It is about the loss of votes of European businesses and tens of thousands by the ANC. And the ANC and its little son, the of European citizens in South Africa. Already in EFF, they think they can bring back the voters September 2017, Stefan Sakoschek, regional who are abandoning the ANC by attacking the director of the EU Chamber of Commerce and white population … Its solution is to attack the Industry in South Africa, expressed the Chamber’s white population. Malema is leading the ANC’s concern over land reform that had also still been election campaign by attacking the white pending at that stage: population.493 Again the definitions in the legislation are very Racial nationalist discourses by the factionalized broad and if accepted it will have major impact ANC and the EFF blaming Afrikaners and whites in on foreigners operating in South Africa. There general have started to overshadow the non-racialist are concerns that the bill is aimed at keeping approach of the Mandela years. However, a senior foreigners out, but there are worries about the government panel chaired by former President expropriation potential that is created.496 Kgalema Motlanthe had already concluded that the fact that land reform has not succeeded so In April 2018, members of the European Parliament far, is neither the fault of the Constitution, nor of correctly stressed during their meeting with South white farmers, but of government incompetence African counterparts that any expropriation should in dealing with thousands of still outstanding meet the agreement of the owners in question claims, four thousand state farms not being used and that fair compensation should be provided. for distribution, corruption, misguided policies, an insufficient 1% of the budget being allocated to The ANC’s support for expropriation without the issue, and inefficient government systems, as compensation has already served as a red light elsewhere in the economy and security services.494 to many foreign investors. From 2013 to 2017, FDI inflows into the country had already declined In fact, according to an Afrobarometer survey in from US$ 8.3 billion to US$ 1.3 billion.497 On 31 July November 2018, a “slim majority” of 53% said 2018, the IMF warned in its annual Article IV report government should maintain the “willing seller, that the ongoing debate on expropriation without willing buyer” policy, rather than expropriation compensation is creating policy uncertainty on without compensation, with only 26% totally property rights and discrediting South Africa’s disagreeing. Half of black South Africans and stated need for foreign investment.498 51% of ANC supporters supported this principle, compared to 62% of coloured citizens, 68% of The South African Reserve Bank stated in Indians and 73% of white South Africans.495 November 2018 that it foresees a high risk of lower domestic economic growth in 2019. It How will European policymakers mentioned uncertainty about land expropriation, and foreign investors respond? which raised uncertainty about property rights and could could affect investor sentiment, as one of the factors causing this.499 “If you create It remains to be seen how European policymakers uncertainty of some aspects of your environment, ensure the protection of the interests of thousands

493. https://www.huffingtonpost.co.za/2018/05/15/experts-how-land-expropriation-could-go-very-very- wrong_a_23435358/. 494. https://citizen.co.za/news/south-africa/1933899/anc-admits-land-reform-failure-recommends-security-of- tenure/; https://www.youtube.com/watch?v=eBkzjji9mkQ; https://irr.org.za/reports/freefacts/files/freefacts- june-2018-22-06-2018.pdf; https://irr.org.za/reports/occasional-reports/files/irr-in-britain-notes-tc-11-07-18.pdf. 495. https://www.dailymaverick.co.za/article/2018-11-13-expropriation-without-compensation-is-a-done-deal-all-thats- left-is-the-formalities/. 496. http://www.ftwonline.co.za/article/126293/Pending-legislation-unsettles-EU-business/66. 497. http://www.mondaq.com/uk/x/731134/agriculture+land+law/Expropriation+Of+Land+Without+Compensation+In+S outh+Africa+May+Breach+International+Law. 498. https://www.iol.co.za/news/politics/imf-warns-about-damaging-effects-of-land-policy-16332203. 499. https://businesstech.co.za/news/business/282816/4-things-expected-to-hit-south-africas-financial-stability-in-the- next-year-according-to-the-reserve-bank/. 114

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and land tenure is one of them, that is one aspect banks continue to view agriculture as an attractive that investors will be looking at,” Sérgio Pimenta, sector.502 the vice president for the Middle East and Africa at the International Finance Corporation (IFC), the According to BASA’s Cas Coovadia, banks have World Bank’s private investment arm, also stated lent an estimated 10 billion Euro or more to the on 14 November 2018.500 agricultural sector based on land as collateral. Several banks and the entire financial system in Companies and individuals in South Africa may South Africa could be put at risk if that security find it harder to insure their properties in future, were to be threatened. BASA had stated as the risk of expropriation without compensation previously that the Constitution already makes is becoming a real threat for insurers. The latter sufficient provision for expropriation. When normally cover the risk of expropriation if it the parliamentary committee stated that it had occurs through a series of cumulative acts by the agreed to an amendment to the Constitution, government that eventually diminish the value of BASA responded:503 a person’s property. However, they mostly do not cover legal expropriation done in accordance with An amendment that leaves all property or a country’s laws.501 specific classes of property – homes, assets, intellectual property, productive agricultural Economic risks and food insecurity property, among others – vulnerable to expropriation without compensation, would be a real risk to banks and the country’s ability to Serious disruption of the already challenged attract both local and international investment, agricultural sector can have major negative grow an inclusive economy and create jobs.504 implications for food security in South Africa, as it has done in Zimbabwe since 2000. Electorates According to the chairman of the Land and in Western countries are unlikely to be keen to Agricultural Development Bank, Arthur Moloto, support development aid after such deliberate expropriation without compensation could could high-risk policies in South Africa. trigger wide defaults that would translate to a loss of 41 billion rand to the government if the bank’s According to the Banking Association of South right as a creditor were not to be protected.505 Africa (BASA), there has been a decline in the number of farm transactions and in land Land is not sufficient for successful farming in arid prices processed by South African banks since South Africa. Experience and entrepreneurship, the proposal to amend the constitution. The working capital, know-how, machinery, labour, farming community has adopted “a wait-and- fuel, electricity, seed, chemicals, feed for livestock, see approach”. BASA also observed a decrease security, and water are all essential. Many of the in capital investment into agricultural properties. people to whom land has been transferred, have It warned that “prolonged uncertainty” would little knowledge of agriculture, with insufficient significantly reduce property values, although

500. http://news.trust.org/item/20181114111607-hsjrq/. 501. https://www.businesslive.co.za/bd/national/2018-09-28-property-insurance-under-threat-in-harsh-land- expropriation-climate/. 502. https://www.businesslive.co.za/bd/national/2018-10-18-fewer-farm-deals-as-farmers-adopt-wait-and-see- approach/; https://www.thesouthafrican.com/land-expropriation-bosa-concern/. 503. https://www.iol.co.za/ios/news/banks-call-for-clarity-on-expropriation-without-compensation-18134092. 504. https://www.iol.co.za/ios/news/banks-call-for-clarity-on-expropriation-without-compensation-18134092. Also see https://www.iol.co.za/business-report/economy/banks-weigh-in-on-land-debate-16824559. 505. https://www.moneyweb.co.za/news/south-africa/sas-land-bank-warns-expropriation-could-trigger-default/; https:// www.businesslive.co.za/bt/business-and-economy/2018-08-25-land-bank-boss-tshokolo-nchocho-on-the-dire- consequences-of-expropriation/. 115

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development of black commercial farming by the rates and significantly higher unemployment ANC. will tend to aggravate the security situation in the country in general. An escalation of criminal activity can also be expected, which Future scenarios point to lower will encourage the emigration of highly skilled people, further eroding the country’s capital formation international competitiveness.506

A macroeconomic impact assessment of the policy of land expropriation without compensation has Infringing civil rights and been undertaken by University of Pretoria Gordon strengthening the hybrid regime Institute of Business Science (GIBS) academic, Roelof Botha, and University of Johannesburg In the run-up to the 2019 national elections professor, Ilse Botha. They compared countries and beyond, investors and policymakers will that have pursued policies similar to expropriation encounter major ANC propaganda campaigns to without compensation, including Portugal, Spain, promote the essentially non-democratic notion Romania, Vietnam, Venezuela, Ethiopia and of expropriation without compensation. These Zimbabwe. campaigns will periodicially focus on scapegoats, like cultural minorities, and use racial nationalism The researchers have found that the ratio to divert attention from the ANC’s governance of capital formation/GDP in these countries failures while ruling a one-party dominant declined annually by an average 13.9% after the order.507 It will present the policy drive as one implementation of such policies. They noted of restoring historical injustice, even though it that the public debate about land expropriation would involve expropriating the legally acquired without compensation in South Africa had already and paid property of citizens and communities no precipitated a decline in real terms of capital longer seen as being within the ANC’s shrunken formation by more than 7% over the past eleven social contract. quarters. Compensation has historically been the most They describe two scenarios based on important and most substantive brake on abusive conservatively estimated declines in capital government confiscations. Compensation also is formation of 5% and 10% a year respectively. In a means of recognising the prior ownership and both scenarios, economic recession, escalating dignity of the victim of expropriation. As legal financing requirements for government, higher researcher, Martin van Staden, wrote: money market and capital market interest rates and a higher cost of servicing public debt will Without being required to pay compensation, result. This will “crowd-out” the government’s the process of expropriation for government will ability to spend funds on poverty alleviation and become significantly easier and opportunities basic services such as education, health and the for abuse will be magnified tenfold. maintenance of infrastructure. Up to now, constitutional property rights Against the background of the current high level consisted of two dimensions: (1) securing of socio-political unrest in SA, the combination existing property rights, and (2) expanding of a prolonged recession, higher interest

506. https://www.businesslive.co.za/bd/national/2018-11-12-land-expropriation-without-compensation-spells-economic- disaster/. 507. https://irr.org.za/reports/occasional-reports/files/empowering-the-state-impoverishing-the-people.pdf. 116

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property rights to those who were denied it during Apartheid. Expropriation without compensation is an aberration and fits into neither of these two dimensions. It de-secures existing property rights, which as a result means any expropriated property transferred to previously disadvantaged South Africans will be similarly insecure. After the Constitution is amended, we will therefore be justified in asking: Is the Constitution now dedicated to helping citizens protect their property rights, or to enabling government to violate them?508

The process of expropriation without compensation as it relates to land, like the broader trend to state intervention covered in Parts X and XI, aims at diluting investor and property rights more broadly. This would allow the one-party dominant rulers to seize or extract wealth wherever it is found.509 In the process, it also increases the leverage of political rulers over citizens and communities, constraining the development of opposition politics in a hybrid regime.

508. https://www.iafrica.com/right-to-compensation-central-to-protecting-human-rights/. 509. https://www.news24.com/Columnists/GuestColumn/the-threat-of-expropriation-without-compensation-is-closer- than-you-think-20190123. 117

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Part XIII Foreign patrons, factional struggles and anti- Western rhetoric

Strong factions in the ANC feel closer to China, which the diplomats of Germany, the USA, the UK, Russia, Zimbabwe and Venezuela’s Maduro the Netherlands and Switzerland had listed some government510 than to the Western powers of the reasons for this somber business mood. responsible for 75% of South Africa’s foreign trade. The reasons included concerns about property Their outlook is strongly influenced by political rights and insufficient investor protection after ties, entrenched ideological roots and geopolitical the ANC government’s unilateral cancellation positioning. of bilaterial investment treaties. It also included concerns about the rule of law and regulatory This outlook was again demonstrated by a predictability.511 diplomatic incident at the beginning of 2019. The semi-boycott of investment by disillusioned The ANC responded with claims that the Western foreign businesspeople had been noted for powers were latter-day colonialists and promoting years by foreign diplomats too. In early 2019, a regime change.512 Wolfgang Drechsler, a foremost discussion document from mid-2018 was leaked in African expert and journalist, wrote:

510. https://www.dailymaverick.co.za/article/2019-03-01-south-africa-stands-firm-behind-maduro/. 511. https://www.dailymaverick.co.za/article/2019-02-04-investor-countries-june-2018-memo-to-pretoria-sparks- february-2019-diplomatic-incident/; https://www.dailymaverick.co.za/article/2019-02-05-the-investors-memo- anatomy-of-self-inflicted-damage/. 512. https://ewn.co.za/2019/02/05/anc-accuses-5-western-countries-of-pushing-for-regime-change-in-sa. 118

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How deep the economic and political Foreign actors may also play a role in intra-ANC dogmatism is entrenched in the ANC, can be factional struggles. Russian decision makers, seen in the official response to the initiative actively trying to expand Russia’s influence in of the five embassies. Instead of seriously Africa, may find it easier at present to align with testing the recommendations to improve the strong Zuma-aligned networks that they have investment climate, the ANC labelled them as dealt with in the past decade. Russia has been unacceptable “meddling by former colonialists” conspicuously absent from the list of countries and an imperialist “pretext to the country’s pledging support for Ramaphosa during his drive recolonization”.513 for foreign investment in 2018.516 Greater reliance on non-Western Looking to China for symbolic and patrons economic leadership

Due to political factionalism and economic policy The ANC leadership has come to view China’s failures, the ANC has become more reliant on Communist rulers as their example. According foreign patrons. South Africa’s foreign policy has to John Matisonn, confidential sources indicated clearly pivoted to China and Russia during the that Zuma had told his cabinet members in 2012 Zuma presidency, when Ramaphosa served as already to go to China for political training.517 vice-president. This policy differs dramatically from the more balanced multipolar approach A Better Africa, the above-mentioned ANC policy under Nelson Mandela’s presidency. discussion document, concludes:

A Better Africa in a Better and Just World, a China [sic] economic development trajectory discussion document of the ruling ANC of 2015, remains a leading example of the triumph of reflected this shift.514 It formed the basis for humanity over adversity. The exemplary role foreign policy discussions at the ANC’s policy- of the collective leadership of the Communist making National General Council in mid-October Party of China in this regard should be a guiding 2015. Such discussion documents are often an lodestar of our own struggle.518 early indication of ANC policy directions in the following five years.515 China now is South Africa’s top trade partner.519 China is also using strategic debt to expand its At this stage, Ramaphosa is likely to continue the influence. In mid-2018, ESKOM received another ANC’s strong leaning towards China. It remains to $3.5 billion in loans from the China Development be seen how he will deal with the USA’s renewed Bank to finish the $15-billion Kusile power plant, engagement in Africa during the Trump presidency. also with Hitachi/ANC boilers.520 The bank’s prior The post-Zuma period and divisions in the EU may major loan to South Africa was to Transnet ($5 allow him to repair relations with some European billion) for China South Rail’s and Shanghai Zenhua actors. Heavy Industries’ corruption-riddled locomotives

513. https://www.fuw.ch/article/aufgefallen-in-suedafrika-ex-kolonie-der-schweiz/. 514. African National Congress NGC 2015 Discussion Documents can be viewed at http://www.anc.org.za/docs/ umrabulo/2015/ngc_disc_docsy.pdf. Chapter 7 of the document, pp 157-193, is entitled “International Relations”. 515. The ANC held its mid-term National General Council (NGC) in October 2015. The NGC is the ANC’s highest policymaking body in between the quinquennial meetings of its National Conference. Ahead of the NGC meeting, various subcommittees of the National Executive body released discussion documents. 516. Africa Confidential, 59(20), 12 October 2018, pp 1-3. 517. John Matisonn, God, spies and lies (Missing Ink, Vlaeberg, 2016), p 417. 518. African National Congress NGC 2015 Discussion Documents at http://www.anc.org.za/docs/umrabulo/2015/ngc_ disc_docsy.pdf, p 161. 519. http://www.moneyweb.co.za/news-fast-news/chinas-jinping-pledges-60bn-to-africa-development/. 520. https://monthlyreview.org/2019/01/01/south-africa-suffers-capitalist-crisis-deja-vu/.

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and Durban-crane procurement via the Gupta on cooperation related to internet infrastructure family empire. According to Mills Soko,521 political and cyber-security.525 economist at the University of Cape Town’s Graduate School of Business, the ANC government Voting against human rights is treating China as a unique strategic partner: measures at the UN The government’s refusal to raise How will these events impact on South Africa’s tariffs on cheap steel imports from political system? They occurred while Western China suggests that it will prioritise powers widely criticized the Chinese record on political pluralism and its limiting of citizens’ access its relationship with China at the to “undesirable” news from the outside and social expense of domestic interests. media.526 After protests in the Ukraine, Turkey and Venezuela, the UN Human Rights Council brought Doctor Jakkie Cilliers, chairperson of the ISS Board a resolution in 2014 to safeguard the right to of Trustees in Pretoria, commented: peaceful protest. In March 2014, South Africa led a group including China, Russia and Saudi Arabia in proposing several amendments to water down In exchange for its membership of the BRICS, the resolution, which prompted criticism from the South Africa appears to have also given China UK representative in Geneva and from Human a licence to de-industrialise the country despite Rights Watch.527 the fact that the EU, as a bloc, is South Africa’s major trading partner.522 In November 2015, South Africa voted with Russia and China against a UN resolution that would Thus, South Africa’s foreign policy shift reflects a recognise threats against defenders of human geopolitical and domestic political reorientation. rights. In July 2016, South Africa joined China The ANC persists in seeing Chinese state capitalism and Russia in voting against a UN resolution on as its model for a developmental state. This the “promotion, protection and enjoyment of remains the case despite South Africa’s strong human rights on the internet”. The resolution private sector and despite bad governance of its was however adopted by most other member parastatal companies weakening the economy states and will be used by the UN Human Rights even further at this stage. In some cases, Chinese Council. The resolution tried to ensure political parastatals and other companies are likely to commitment from member states to protect enjoy a politically-based advantage over Western freedom of expression and privacy online, and to companies.523 refrain from shutting down the internet during key times such as elections or terror attacks.528 Political and security cooperation have become closer. The education of higher-level executives at Conditions for good democracy or criticisms of South African SOEs and senior ANC party cadres ANC policies formulated by Western powers, is conducted in cooperation with the Communist Western media or domestic opposition groups are Party of China.524 The ANC government has also increasingly being portrayed as neo-colonialist. already signed a deal with the Chinese government

521. http://mg.co.za/article/2015-08-22-sa-and-china-a-love-founded-on-state-control. 522. https://issafrica.org/iss-today/selling-our-future-for-a-bric-time-to-rethink-south-africas-foreign-policy. 523. https://www.businesslive.co.za/bd/opinion/editorials/2018-01-15-editorial-why-the-sinopec-deal-is-intriguing/. 524. http://mg.co.za/article/2015-08-22-sa-and-china-a-love-founded-on-state-control; http://www.cnbc. com/2016/08/24/will-closer-ties-to-china-rescue-south-africas-government.html. 525. http://www.cpifinancial.net/news/post/31624/south-africa-and-china-sign-ict-plan. 526. http://www.giga-hamburg.de/de/publication/zivilgesellschaft-unter-druck-globaler-widerstand-gegen-demokratie- wächst; http://www.giga-hamburg.de/de/news/media-made-in-china. 527. http://blog.unwatch.org/index.php/2014/04/01/shaky-road-to-important-peaceful-protest-resolution/. 528. http://www.businesslive.co.za/bd/opinion/2016-11-08-states-double-dealing-a-threat-to-rights-in-sa/. 120

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Some NGOs claim that the Chinese government to enhance its position in Africa and extend its and the ANC government assist each other in influence in South Africa.533 As Prof Mark Swilling obstructing or delaying the requests of critical noticed: NGOs to gain observer status at some UN structures for NGOs. These NGOs include Freedom Now, a Putin signed a decree in 2007 that provided US-based group supporting political prisoners of for the consolidation of all nuclear capabilities conscience, and AfriForum, a South African-based built up during the Cold War into a new civilian group supporting minority and civil rights.529 nuclear industry with global ambitions. Since then, Russians have been building nuclear It remains to be seen to what extent South Africa power plants that are a hybrid between an under Ramaphosa uses its non-permanent seat on embassy and a military base, often financed off the UN Security Council during 2019 to promote a state guarantee that effectively gives Russia human rights selectively or with geopolitical trade- massive leverage over the host country.534 offs. Its freedom of action will be constrained by the ANC’s internal factionalism, the struggling Relations between Putin and Zuma developed economy and socio-political challenges, including to both personal and national security interests. the land reform policy.530 When Zuma believed he had been poisoned in August 2014, it was to Russia that he allegedly went to get medical treatment.535 During the same Choosing Russia against “US- period, news emerged of a mysterious, but major personal deal on a nuclear energy programme sponsored destabilisation” concluded in Russia between Putin and Zuma.

Both domestic and foreign considerations play a The nuclear energy deal was in contrast with role in the ANC’s policy towards Russia. Business energy and economic policies, including the Day editor Peter Bruce speculated in 2013 that NDP. Major departments in South Africa were the ANC’s financial troubles would probably not involved in the opaque deal, reputed to be 536 result in the party returning to its dependence on worth up to $100 billion. Zuma also dismissed foreign funders, especially among non-Western ministers who opposed the deal and did not follow powers.531 In 2014, reports emerged that the ANC the prescribed procedures. The nuclear deal had was broke. The ANC denied the reports.532 as much potential for corruption as the arms deal scandals of the 1990s, in which Zuma’s role has 537 Putin, a former KGB intelligence officer, used not yet been clarified. the opportunity to strengthen Russia’s policy

529. http://mg.co.za/article/2015-08-13-diplomatic-fracas-brews-over-ngo-freedom-now. 530. https://m.dw.com/de/s%C3%BCdafrika-im-un-sicherheitsrat-f%C3%BChrungsqualit%C3%A4ten- gefordert/a-47093477. 531. http://www.bdlive.co.za/opinion/columnists/2013/11/18/thick-end-of-the-wedge-zuma-is-pretty-well-untouchable- politically. 532. http://mg.co.za/article/2014-10-30-broke-anc-may-have-to-cut-jobs-for-comrades; http://mg.co.za/article/2014-10- 31-anc-denies-it-is-broke. 533. http://www.atlanticcouncil.org/en/blogs/africasource/russia-s-return-to-africa-an-update. 534. https://www.dailymaverick.co.za/opinionista/2019-01-21-the-zuma-power-elite-is-alive-kicking-and-preparing-to- replace-ramaphosa/. 535. http://www.iol.co.za/pretoria-news/opinion/reliance-on-russia-goes-way-back-1.1903975. 536. http://uk.reuters.com/article/2015/08/14/uk-safrica-nuclear-idUKKCN0QJ11T20150814; “Jacob Zuma’s secret nuke stitch-up”,Mail and Guardian, 26 September 2014; “Less Russia, more speed”, Financial Mail, 4 September 2014; “SA denies corruption in Russia’s nuclear deal”,Fin24 , 1 October 2014. 537. https://mg.co.za/article/2017-10-17-president-jacob-zuma-implements-his-12th-cabinet-reshuffle. 121

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Since his election as president, Ramaphosa has indicated that the nuclear deal will not be pursued The ANC is a revolutionary national immediately. However, in Russia, Vladimir Putin liberation movement which is an has won the election and will be ruling until 2024. 538 Russia has also increased its efforts to build integral part of the international influence in Africa, using government-backed revolutionary movement to liberate security, arms, energy and industrial deals.539 At humanity from the bondage of present it is unknown whether the ANC-controlled 543 security apparatus will markedly change their imperialism and neo-colonialism. policies on Russia.540 Numerous intelligence officials of South Africa have received training in The text even went so far as to quote the Russia in recent years.541 In September 2016, the founder of the Soviet Union, Vladimir Lenin, on deputy director of the Russian Federal Service for the revolutionary transformation of society, and extolled the value of the Russian Revolution in Military-Technical Cooperation (FSVTS), Anatoly 544 Punchuk, confirmed that the FSVTS had for the 1917. The ANC document does not celebrate first time proposed to South Africa to engage in the fall of the Berlin Wall a quarter of a century joint industrial research in the defence sphere.542 ago. Instead, the ANC document actually laments “the sudden collapse of socialism in the world According to leaked cables obtained by Al Jazeera, [that] altered completely the balance of forces in the military intelligence services of both countries favour of imperialism”. This new imperialism has have been involved in a $100 million joint satellite “plunged humanity in a perpetual socio-economic surveillance programme covering Africa. The crisis”, and the US stands accused of “effectively satellite system, known as Project Condor, is using its aggressive foreign policy to advance its regarded as a significant part of the envisaged national interests”. strategic cooperation between Russia and South Africa. The project is also aimed at challenging the Anti-Western bias and paranoia domination of African arms sales by the US and France. Outlandish international conspiracy theories periodically find fertile ground in the ANC, In the document, the ANC leadership also according to political scientist Anthony Butler reaffirmed its ideological roots: of the University of Cape Town.545 In September

538. https://www.economist.com/news/europe/21738386-atlantic-alliance-ill-prepared-deter-russian-aggression-russias- conventional-forces. 539. https://www.irishtimes.com/news/world/west-watches-with-concern-as-putin-builds-influence-in-africa-1.3767151. 540. https://af.reuters.com/article/topNews/idAFKBN1FF1JT-OZATP?utm_source=34553&utm_medium=partner. 541. http://www.news24.com/SouthAfrica/News/Spies-trained-in-Russia-raise-double-agent-fears-20140831.\; https:// www.dailymaverick.co.za/opinionista/2018-02-05-ramaphosa-will-need-to-tackle-the-state-security-agency/#. WngwGqjibIU. 542. https://rbth.com/news/2016/09/13/russia-proposes-to-south-africa-industrial-cooperation-in-defense- sphere_629635. 543. African National Congress NGC 2015 Discussion Documents at http://www.anc.org.za/docs/umrabulo/2015/ngc_ disc_docsy.pdf, pp 160, 185-186. 544. http://allafrica.com/stories/201508251340.html;http://time.com/3601968/anc-south-africa-china-communist- party/. For a similar approach in Zimbabwe, see http://valdaiclub.com/a/highlights/the-ideology-of-russia-s-return- to-africa/. 545. “ANC blame shifting exercise is under way”,Business Day, 26 February 2016. 122

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2014, Kebby Maphatsoe, the deputy minister of aimed to “plant the seeds of anarchy”. The US Defence and Veterans, called Public Protector Thuli ambassador to South Africa, Patrick Gaspard, Madonsela a CIA agent because of her continued pointed out that he had personally invited investigation of the Nkandla scandal involving Mantashe to recommend young leaders from the President Zuma. The US ambassador was present ANC for the programme, called the Washington and lodged an official complaint. Peter Fabricius Fellowship.549 of the ISS commented: Van Onselen states: [A]t least [Maphatsoe] did new members of the diplomatic corps a favour … Many diplomats still arrive in the country under the naïve Under pressure the African National Congress impression that they are coming to serve in (ANC) has historically relied on one red herring the land of Mandela, a rather idyllic rainbow above all others to negate responsibility and nation in love with itself and the entire world. divert attention from dissatisfaction with its own Maphatsoe’s crude suggestion … would have performance: a “third force”, be it the Central been a wake-up call, alerting them to the sort Intelligence Agency (CIA) or white supremacists, of ideological sentiment that still runs beneath is supposedly the root cause of its many and the surface here, and sometimes emerges.546 varied problems. Always unseen, never proven and yet constantly alluded to, its claims to this effect are the ultimate abdication of agency When in early June 2015 the news broke that … The ANC has deliberately manufactured an the hosting of the FIFA World Cup in South Africa environment in which everything that runs in 2010 may have been obtained through a $10 against the party or threatens its legitimacy is million bribe to FIFA officials, a similar response blamed on some outside agency … The ANC has emerged from ANC circles.547 In March 2015, helped engender and augment that reality on the State Security Agency announced that it was various different levels, least of all by fuelling investigating Public Protector Thuli Madonsela, EFF an atmosphere of paranoia and conspiracy.550 leader Julius Malema, former DA Parliamentary Leader and head of the Association of Mineworkers and Construction Union, Joseph Mathunjwa, as American spies. A new Cold War in Africa? Claims of a UK military plot against Zuma emerged in 2016.548 China is strengthening its internal autocracy and increasingly building its power and influence in In February 2016, the then ANC Secretary General Africa. The hope that China would evolve into a Gwede Mantashe, a strong Ramaphosa ally, said: softer, less autocratic and more capitalist guardian 551 “We are aware of the programme that takes of an international power balance, is gone. young people to the US for six weeks, then brings them back and plants them everywhere in the US policy in Africa currently focuses on security, 552 campuses”. He said “regime-change elements” geopolitics and trade, not human rights. On 13 had gripped South Africa and they (the students) December 2018, John Bolton, the national security

546. http://www.issafrica.org/iss-today/acronymia-nervosa-the-cia-and-the-icc. 547. http://www.bdlive.co.za/opinion/columnists/2015/06/05/thick-end-of-the-wedge-fikile-mbalulas-folly-play-chicken- with-the-fbi. 548. http://www.news24.com/SouthAfrica/News/anc-claims-uk-plotting-to-unseat-zuma-20160516; http://www.vice. com/read/exclusive-the-british-armys-secret-plan-to-prop-up-south-africas-ruling-party. 549. “South African ruling party official accuses US of plot”,The Washington Post, 21 February 2016. 550. http://sa-monitor.com/top-10-bogus-anc-conspiracy-theories-bdlive-25-may-2016/. 551. https://www.economist.com/news/leaders/21737517-it-bet-china-would-head-towards-democracy-and-market- economy-gamble-has-failed-how. 552. Africa Confidential, 59(18), 14 September 2018, pp 3-4. 123

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adviser of US president Donald Trump, announced Boko Haram.557 There are concerns that several that the USA wants African governments to factors may at some stage converge to increase choose strategically between support for the the risk of Islamist extremist attacks against USA or for China and Russia. Trump’s policy was Western or symbolic targets in South Africa. The especially focused on countering China’s influence extent of political and bureaucratic corruption in Africa. “They are deliberately and aggressively and factionalism, limited crime intelligence and targeting their investments in the region to policing abilities, changing dynamics among gain a competitive advantage over the United extremist groups elsewhere in Africa and the States,” Bolton said. “China uses bribes, opaque Middle East, as well as alliances between the agreements and the strategic use of debt to hold governments of South Africa and other African states in Africa captive to Beijing’s wishes and countries fighting against Islamist terrorist groups demands”.553 may result in targets in South Africa being selected.

It remains to be seen how South Africa will The ANC has also used anti-Israel policy gestures to position itself, given its membership of BRICS and reinforce its “revolutionary” credentials. The one its strong historical pro-China orientation. The foreign policy decision announced during the ANC’s anti-US position of the ANC has implications for conference in December 2017 was to downgrade the US Africa Command on the African continent, South Africa’s diplomatic relations with Israel as is apparent from this excerpt from a National by reducing the embassy in Tel Aviv to a “liaison General Council (NGC) discussion document in office” – “immediately and unconditionally”.558 2015: At the hundred-and-fifth anniversary celebration of the ruling ANC in January 2017, Zuma called The campaign to engage all [African Union] on South Africans not to visit Israel in order to member state [sic] on the continent not to host show solidarity with “the people of Palestine”.559 these military bases continue [sic]; however, the Ramaphosa has not changed the ANC’s conference question that should be posed is whether this decision, and while he has addressed meetings of is still preventable because in certain places on Jewish South Africans, he referred in his speech at the continent AFRICOM has already established the ANC’s birthday celebrations only to the ANC’s its footprint in the form of training soldiers and condemnation of occupation and suppression in other newly devised mechanisms? The ANC has Palestinian territories.560 to deal with these realities and develop new strategies to take this campaign forward.554 Leaving the International Criminal There is still active cooperation between South Court (ICC) African and European and US security agencies on potential Islamist extremism.555 To date, terrorist The ANC government’s foreign policy often groups have preferred to use South Africa as diverts from Western powers’ concerns regarding a sanctuary to gain passports, raise funds and human rights and rule of law. On 15 June 2015, recruit with relative ease.556 However, two of for example, Sudanese President Omar Al-Bashir the four strongest Islamist terrorist groups in the was allowed to leave South Africa, despite an ICC world are from Africa, namely Al-Shabaab and warrant for his arrest. On the same day Judge

553. https://www.whitehouse.gov/briefings-statements/remarks-national-security-advisor-ambassador-john-r-bolton- trump-administrations-new-africa-strategy/; https://www.nytimes.com/2018/12/13/us/politics/john-bolton-africa- china.html. 554. African National Congress NGC 2015 Discussion Documents at http://www.anc.org.za/docs/umrabulo/2015/ngc_ disc_docsy.pdf, p 176. 555. https://www.theguardian.com/world/2016/jun/04/south-africa-islamist-militant-attacks-us-warning. 556. http://www.dailymaverick.co.za/article/2016-06-06-terror-warnings-is-south-africa-really-an-islamic-state-target/#. V1T7X5Uw_IV. 557. See https://reliefweb.int/report/world/global-terrorism-index-2018. 558. https://issafrica.org/iss-today/can-ramaphosa-revitalise-south-africas-foreign-policy. 559. https://www.israelnationalnews.com/News/News.aspx/222973. 560. https://www.iol.co.za/news/politics/ancmanifesto-read-cyril-ramaphosas-full-speech-18792716. 124

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President Dunstan Mlambo of the High Court in described as “a betrayal of the victims of atrocious Pretoria ruled that the ANC government’s failure crimes”.567 to arrest Al-Bashir was inconsistent with the South African Constitution, that the government was in However, in November 2016 the ANC government contempt of court and should have arrested and gave notice of its intention to withdraw from the detained Al-Bashir.561 ICC. “South Africa’s proposed withdrawal from the International Criminal Court shows startling Doctor Abiodun Williams, president of The disregard for justice from a country long seen as Hague Institute for Global Justice, referred to “a a global leader on accountability for victims of the clear abuse of executive authority by the South gravest crimes,” said Dewa Mavhinga, the NGO’s African government … Clearly, the Bashir case is Africa division senior researcher.568 not in keeping with Mandela’s ideals”.562 When the opposition party, the DA, in September 2015 In February 2017, the ANC government’s brought a motion to impeach President Zuma decision to withdraw from the ICC was ruled for the government’s handling of the Al-Bashir “unconstitutional and invalid” by the High Court. visit, the ANC’s response was to state that the DA The court ordered the government to revoke was acting on behalf of the US and promoting an its notice of withdrawal. In December 2017 “imperialist agenda”.563 At the ANC’s NGC meeting and September 2018, Justice Minister Michael in October 2015, the latter took the decision to Masutha said the government still intended to quit ask the ANC government to begin the process of the ICC.569 Ramaphosa defended the government withdrawal of its membership of the ICC.564 decision to withdraw in 2016 when he was deputy president570 and he has not yet clearly indicated In October 2016, after Zuma’s visit to Kenya and a his opposition to South Africa’s withdrawal from BRICS summit, during which he may have received the ICC.571 guarantees of support, the ANC government gave notice of its intention to leave the ICC. Shortly In December 2018 the Constitutional Court of thereafter, Russia also indicated that it would South Africa also found that the Zuma government, withdraw its support of the ICC, which categorized to the detriment of expropriated Zimbabwean Russia’s actions in the Crimea as an occupation.565. farmers who had turned to the Southern “South Africa’s withdrawal would be a huge reversal Africa Development Council (SADC) Tribunal, of its role as a leader promoting victims’ rights and had unlawfully supported the Zimababwean the values in its post-apartheid constitution”, was government in suspending the Tribunal in 2011 and the response by Human Rights Watch.566 Western removing its competences to deal with individual media and policy-makers expressed their dismay cases when it was reinstated in 2014.572 President at what the former US ambassador, Stephen Rapp, Ramaphosa, whose government opposed a lower

561. http://www.bdlive.co.za/africa/africannews/2015/06/15/failure-to-arrest-bashir-violated-south-african-constitution- judge-rules. 562. http://www.theguardian.com/global-development-professionals-network/2015/jun/24/south-africas-failure-arrest- al-bashir-not-in-keeping-mandelas-ideals. 563. http://www.citizen.co.za/666696/anc-rips-into-colonialist-da-over-failed-impeachment-motion/; http://www.iol. co.za/news/politics/anc-rips-into-colonialist-da-1.1909728#.VkMy0JqBfmQ. 564. http://www.voanews.com/content/anc-wants-south-africa-out-of-international-criminal-court/3002092.html. 565. http://www.nytimes.com/2016/10/22/world/africa/south-africa-international-criminal-court.html?_r=0; https:// www.dailymaverick.co.za/article/2016-11-22-view-from-the-hague-the-icc-bleeding-has-stopped/. 566. https://www.hrw.org/news/2016/10/24/south-africa-icc-move-betrays-victims; http://www.fr-online.de/politik/ suedafrika-sabotage-am-strafgerichtshof,1472596,34875228.html. 567. “South Africa to Withdraw From International Criminal Court”,New York Times, 21 October 2016. 568. http://www.bbc.com/news/world-africa-37724724. 569. http://www.bbc.com/news/world-africa-39050408; https://www.dailymaverick.co.za/article/2017-12-07-south- africa-confirms-withdrawal-from-icc/. 570. http://ewn.co.za/2016/11/09/ramaphosa-defends-south-africa-s-withdrawal-from-icc. 571. https://mg.co.za/article/2018-06-12-ramaphosa-has-a-rare-chance-to-stop-sa-withdrawing-from-the-icc. 572. https://www.dailymaverick.co.za/article/2018-08-30-south-africas-role-in-the-denial-of-justice-in-southern-africa/. 125

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court’s similar ruling before,573 was ordered by the interests, including terrorism in Africa. However, court to remove Zuma’s signature. the tone of ANC statements on Western policies is largely critical, and is noted by Western Chief Justice Mogoeng Mogoeng stated in his governments and business.575 Often this occurs ruling: “It is fundamentally about challenging to cover internal weakness and failures in the expropriation of land without compensation governance, to compete with internal rivals or to and the intended removal of the tribunal’s find scapegoats. jurisdiction to determine the validity of that kind of land expropriation that was done in terms of The factionalised ANC is now more reliant on the Constitution of Zimbabwe.” Kallie Kriel, CEO foreign patrons, including China and Russia. of the civil rights movement AfriForum, that However, the agency of the ANC’s own factions was one of the applicants, stated that the ANC should not be underestimated.576 Negative government could be held accountable by the responses by the ANC towards Western powers, farmers for considerable amounts for trauma and businesses and value systems at crucial moments dispossession.574 remain likely in the next few years. Anti-Western reflexes?

Western governments and South Africa naturally continue to try and find common ground and cooperate on various economic and security

573. https://www.dailymaverick.co.za/article/2018-09-06-two-court-disputes-test-sas-commitment-to-rule-of-law/. 574. https://citizen.co.za/news/south-africa/courts/2050479/white-zim-farmers-want-billions-from-sa-after-zuma-ruled- complicit-in-illegal-sadc-move/; https://www.news24.com/SouthAfrica/News/zumas-decision-on-sadc-tribunal- unconstitutional-unlawful-and-irrational-concourt-20181212. 575. http://www.dailymaverick.co.za/article/2015-08-20-ancs-future-foreign-policy-all-roads-lead-to-china/#. VeCrx5rALmQ; http://time.com/3601968/anc-south-africa-china-communist-party/. 576. http://www.ascleiden.nl/news/new-asc-infosheet-pivoting-russia-china-and-anti-western-rhetoric-south-africas- foreign-policy. 126

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Part XIV The political risks to business in the next two years

South Africa continues to present attractive factional competition in the run-up to elections business opportunities. High political risk, and the repositioning of the deeply divided ANC; combined with global economic challenges, the further politicization of the security forces and have already contributed to a massive decline in securitization of politics to prop up presidential meaningful foreign direct investment in South rule; as well as the weak economy and more Africa.577 It is expected that the political risk to limited state resources. business will remain high in at least the next two years as the internally diverse Ramaphosa faction The ANC hybrid regime is likely to remain in place and Zuma faction continue to contest control in the medium term. Ramaphosa’s presidency over the ANC. Three drivers will strengthen the has meant a continuing recirculation of elites dynamics of a hybrid regime and democratic and new networks of power and patronage, with decline in the coming years: they are intensified related changes in rhetoric and policies. However,

577. http://sa-monitor.com/political-risk-affecting-foreign-investment-sa-bdlive-5-september-2016/. 127

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the Zuma faction and related networks remain The planned and actual measures would weaken strong at all levels of the ANC. Ramaphosa and his property rights and reduce private-sector supporter networks have been deeply embedded autonomy. This result would strengthen the in the current neopatrimonial and one party position of crony capitalists with links to ANC dominant system for years. They will be unable to factions compared to other businesses. The significantly change the underlying, and by now ANC policy move to weaken the constitutional well-established dynamics, rules of the game and protection of property rights constitutes another the incentive systems described. step in this direction. It also threatens to undo some of the anchors of the peace settlement Once state institutions in a one-party dominant of 1994, creating an even more selective social state have become so permeated with factions, contract and polarization between communities. patron-client networks, regional and local In addition, the weakening of property rights strongmen, and unaccountable presidentialism, create more room for executive discretion in the processes become self-generative. Incumbents decision making and non-accountable dynamics have too much to lose and too slim chances in the hybrid regime. of having political or economic alternatives. Democratic checks and balances on these forces To date, consumption and short-term fulfilment of will have some partial impact on a case-by-case patron-client obligations, rather than production, basis, but overall and ultimately they will be state capacity-building or long-term investment, ineffective. It is unlikely that Ramaphosa will be have dominated the deployment of resources able to institutionalize democratic checks and and opportunities gained. The political effect of balances in the hybrid regime to the extent that more ANC resources will be to regenerate the a future Zuma-like presidency can be prevented. power of ANC factions, since patrons will be able to cultivate new clients and constituencies and Faced with new political and trade union sustain relationships with existing ones in the challengers, the ANC is desperately trying to find hybrid regime. During the competition with new ways of regaining some of its lost support among political and trade union challengers, such steps key constituencies. Due to the current levels of could also be presented as populist measures state debt, ANC factions are under pressure to aimed at improving the lot of the poor. find economic resources to sustain themselves and their patron-client networks. The high levels of state debt and the needs of the ANC’s patronage networks will drive efforts to Policies for economic growth will remain torn look for new sources of income, both domestically between different stakeholders and policy and internationally. The value of some state-run preferences. Policy incoherence and unexpected corporations, but also other assets or opportunities twists will often reflect phases in factional of which it should be the public custodian, could competition and newly-bargained advantages and be capitalized or mortgaged. Sometimes this will alignments, rather than ideological vacillation. have a knock-on impact on existing government Policy swings and uncertainty will be experienced undertakings towards business. At present, there most by companies in those sectors most is a real risk of the government inducing major exposed to the government’s political priorities pension and investment funds to invest in weakly- or regulatory and licensing power. Minerals, managed or failing parastatals. energy, security, agriculture, telecoms and pharmaceuticals would be among these sectors. The search for new sources of income will coincide with an increased effort at economic diplomacy, The ANC has proceeded with several regulations, both formal and informal. The diplomacy will be policy initiatives, bills and laws regarding mining couched in the rhetoric of branding, using South and energy, the security industry, affirmative Africa’s many and unquestioned opportunities. action and black empowerment, land, patents, However, the actual results would at least partially and foreign investors in general. The common strengthen the ANC’s patron-client networks underlying policy in all of them is the same: in state structures, rather than South African they greatly increase the ANC government’s communities and citizens as a whole. interventionist powers in the economy. 128

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Factional struggles for scarce resources will There is an oligopoly of violence instead of the drive efforts to increase state income through state’s monopoly of violence. The ANC government these measures and others. Unaccountable does not consider a restoration of the security of presidentialism, local big men and informal citizens and businesses as a state priority. Business patron-client networks may play a role in this and NGOs should review and regularly update regard. There are different codes of conduct in their risk mitigation measures. different jurisdictions, and international business would need to heed best practices regarding The search for more resources in the hybrid integrity and reputational risk. regime and factional competition could result in an increased dependency of key decision The levels of visible state mismanagement makers on foreign patrons like China, Russia or and operational risk are likely to remain high other political and business actors. The field or sometimes even rise. This state of affairs of competitors and the importance of specific will continue to have an effect in many areas competitive advantages of business may change of service delivery: the security of citizens and suddenly. Western business is advised to actively farmers, electricity, water management, waste involve their business associations, business management, roads, education, postal services, media and policy-makers to support their projects and others that may arise. The impact will differ in South Africa. per province and locality, with pockets of sufficient or good service delivery in provinces and local International business may find it worthwhile to areas. conduct corporate social responsibility projects that focus on entrepreneurship training and Based on the internal and external dynamics business education. Given current socio-political of the ANC government, if interventions do not dynamics, such initiatives should take into have the required effect, there is a risk that such account the cultural capital and mother-language a result would not trigger a reassessment of preferences of different groups and the option the intervention, but rather a stronger form of of private education institutions. If the projects intervention. involve cooperation between foreign and South African institutions of public education, strict Protest politics may have some impact on criteria and monitoring to reinforce the remaining operations in a specific location, but are likely to spaces of academic freedom are recommended in be of limited duration. Depending on the locality, policy-relevant education and research. protest politics may be more prominent during periods in the run-up to elections, during elections There is a limited but robust evolution of capacity and shortly thereafter. and self-help initiatives within cities, communities, and the private sector. This trend will involve an Factions within trade unions and trade unions will authority migration over time and shape the new compete intensely with each other for members, political order. Business and NGOs are advised networks, power, status and resources. As a result, to identify potential partners and to use the industrial unrest will continue to be a major risk. opportunities involved. Due to the context in which it will be occurring, the potential politicization of disputes could be fast and assume militant forms.

Real or instigated xenophobic, anti-Western or indigenization sentiments may emerge during power plays or tough negotiations. When under pressure over non-democratic or bad governance, the ANC, as in the past, could easily resort to conspiracy theories or to smearing credible critics and political opponents as “imperialists”, “racists”, “fascists” or “colonialists”. Business may sometimes be caught in the crossfire. 129

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Part XV Rebuilding the private sector and sustainable communities

South Africa’s political and economic cultural and education-related institutions and restabilization increasingly depends on healthy networks, and NGOs could play a major role in this institutions in the private sector and sustainable regard. If considering activities in South Africa, communities. During the past few years, the ANC such actors should give renewed attention to two government has increasingly failed to deliver good important generators of stability and prosperity: governance. While President Ramaphosa is trying the private business sector and institutions for to roll back some of the worst abuses of the Zuma sustainable communities in South Africa. presidency, the hybrid regime and the incentives and sanctions of the political order will seriously Opportunities: A McKinsey Global Institute report, constrain any improvement in the near future. South Africa’s big five: Bold priorities for inclusive growth, identifies five major opportunities: service New partnerships, new jobs and skills development exports; advanced manufacturing; infrastructure; will be important to rebuild South Africa’s stability natural gas; and the agricultural value chain. If and prosperity. There are still opportunities. government and businesses prioritize initiatives Europe-based small and medium businesses, from these sectors, they could by 2030 increase

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GDP growth by a total of 1.1 percentage points Mpumalanga and Free State provinces. Afrikaans- per year, adding R1 trillion ($87 billion) to the speaking businesses and NGOs are well-placed annual GDP and creating 3.4 million new jobs in to partner with European businesses and NGOs South Africa.578 that want to use developed parts of South Africa as platform for expansion into other African Community and private sector alternatives: In countries and markets. the case of South Africa, the broader population of more than 57 million people has at least eleven Academic education: Considerable opportunities major identity groups, often with regional histories exist in private education or community-based and territories. None of these groups constitute education. Among the Afrikaans-speaking middle a complete majority, according to South Africa’s classes, as well as the Afrikaans-speaking poor, Census 2011. Rebuilding South Africa should take access to mother-language tertiary education both the common and the diverse needs of all is becoming more difficult. Of the thirty-eight communities and citizens into account. universities in South Africa, six have traditionally been Afrikaans-medium institutions. Due to a In this regard, Afrikaans-speaking communities combination of political pressures and market have not received sufficient attention. Afrikaners demands, the position of Afrikaans has been constitute about 2.6 million people; coloured seriously weakened at all of them. In the recent South Africans who speak Afrikaans about 3.4 past, Afrikaans has lost its equal constitutional million and black people who speak Afrikaans position due to new language policies at the about 600 000.579 University of South Africa, the University of Pretoria, the University of the Free State, and In South Africa’s private sector, Afrikaans-speaking even the symbolically-important University of citizens and communities play a major role in all the Stellenbosch. sectors mentioned in the McKinsey report above. In addition, they and other communities also Already, the Solidarity Movement, with the support constitute potential partners and markets with from various business, academic and community specific needs and skills in academic education, stakeholders, has established Akademia with the vocational education, cultural relationships and declared aim of becoming a small, high-quality healthcare. university in the next decades. It aims to cater for the academic needs of the Afrikaans community, The Afrikaans-speaking language group are spread and foreign partnerships will constitute an in communities across South Africa. As a group, essential part of its growth.580 they include many of the better skilled and middle- class population in South Africa, with a history Many young Afrikaans speakers also continue to of building strong community and educational look for opportunities to travel and work for a institutions in conditions of adversity. They also period before returning home. While many of this constitute a key and very strong minority among age group go to the English-speaking world, real the six million individual taxpayers, nationally and gaps and opportunities exist in German-speaking locally. and Dutch-speaking countries to establish mutually beneficial and also longer-term relations. There are larger concentrations of Afrikaans In the war for talent, and in the establishment of speakers in Gauteng province and the Western new business ventures outside Europe, young and Cape, where they form just less than 50% of the skilled Afrikaans speakers represent an overlooked population. Numerically and socially they are also niche segment. influential in the Northern Cape, North West,

578. http://www.mckinsey.com/insights/africa/south_africas_bold_priorities_for_inclusive_growth. 579. See Census 2011 at http://www.statssa.gov.za. 580. http://www.worldbank.org/en/country/southafrica/publication/south-africa-economic-update-jobs-changing- demographics. 131

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Vocational education: In many poorer urban products and services customized according to and rural communities, a massive scale-up of demographics and income. vocational training is needed for technical skills to support export-oriented industries. The Solidarity Advanced manufacturing: South Africa has a pool Movement has launched Soltech, a vocational of skilled labour, in which people from Afrikaans- training facility, and supports various initiatives to speaking communities constitute an important develop vocational education in South Africa. segment. The country has the potential to grow into a globally competitive manufacturing Healthcare: Private healthcare systems and hub focused on high-value-added categories community-based healthcare systems remain a such as automotive and industrial machinery potential growth market. South African higher and equipment, and chemicals. To realize this education systems still produce many health-care opportunity, South African manufacturers professionals sought after in Europe, but state- will have to pursue new markets and step up supported health systems in several provinces are innovation and productivity.583 decaying.581 Infrastructure: South Africa is investing heavily Service exports: Europe as a whole remains the in infrastructure; however, big gaps remain in most important trading partner of South Africa. electricity, water, and sanitation. According to Many small and medium-sized businesses run by McKinsey, partnerships between the public Afrikaans speakers continue to look at business and private sectors could make infrastructure opportunities with European partners. Many spending up to 40% more productive. This could of them also draw from cultural repertoires of be achieved by maximizing the use of existing a strong work ethic, knowledge about Africa, assets and increasing maintenance. In addition, and flexible improvisation under conditions of prioritizing projects with the greatest impact, adversity. and strengthening management practices to streamline delivery, would be needed.584 South Africa has highly developed service industries. Nevertheless, it currently captures only Many parts of South Africa are arid or becoming so, 2% of the rest of sub-Saharan Africa’s market for and the demand for water management expertise service imports, which is worth nearly half a trillion and customized systems is set to grow.585 The rand ($38 billion). With the right investments, expertise developed in South African conditions service businesses could increase exports to the would stand European companies in good stead region. In construction, the opportunity ranges if they are able to expand to other countries in from design to construction management to Africa or Asia. maintenance services. 582 Energy: South Africa’s electricity shortage has In financial services, potential growth areas include constrained growth. Despite new capacity, wholesale and retail banking. Digital opportunities McKinsey forecasts another shortfall between are especially promising, with an expanding 2025 and 2030. Natural-gas plants can provide an middle class, quick adoption of smart phones and alternative to diversify the power supply. They are improved conditions for internet access. South fast to build, entail low capital costs, and have a African actors are often world leaders in insurance small carbon footprint. McKinsey estimates that

581. http://www.bdlive.co.za/national/health/2015/11/11/report-reveals-healthcare-crisis-in-free-state. 582. http://www.mckinsey.com/insights/africa/south_africas_bold_priorities_for_inclusive_growth. 583. http://www.mckinsey.com/insights/africa/south_africas_bold_priorities_for_inclusive_growth. 584. http://www.mckinsey.com/insights/africa/south_africas_bold_priorities_for_inclusive_growth. 585. Steve Hedden and Jakkie Cilliers, “Parched prospects: The emerging water crisis in South Africa”, Institute for Security Studies - African Futures, 11, September 2014.

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South Africa could install up to twenty gigawatts for innovation. of gas-fired base-load power-generation capacity by 2030. Gas could be provided through imports. Tourism: Cultural, historical, nature and adventure However, once again, policy and regulatory tourism all constitute major opportunities for certainty would be a challenge.586 business. Among Afrikaans-speaking citizens, Europe historically constituted a tourist destination Afrikaans-speaking and other communities often of high interest. An estimated 300 000 tourists strive for increased self-sufficiency from unreliable from Germany to South Africa annually and an government-delivered services. In addition, estimated 100 000 tourists from the Netherlands among the middle class, there are strong concerns annually indicate the current potential for about the environment and sustainability. Local partnerships.588 renewable energy systems would be highly relevant and potentially lucrative in a country with A place for all communities and citizens: The the climate and sunshine of South Africa. position of citizens from different communities remains a central challenge for political orders Raw and processed agricultural exports: in Africa. Solomon Dersso, commissioner of the Agricultural and food consumption is rising in African Commission on Human and Peoples’ markets throughout sub-Saharan Africa and Asia. Rights, has stated that few African orders and South Africa could triple its agricultural exports by policies give sufficient recognition to the diversity 2030. This could be a key driver of rural growth, of more than two thousand cultural groups in its benefiting the nearly one in ten South Africans 54 states.589 who depend on subsistence or smallholder farming. According to McKinsey, capturing this A new model of African liberation is needed – in potential will require a strong effort to improve Africa, and in Southern Africa. It should be one production, productivity, and agroprocessing.587 that allows peaceful co-existence and mutual However, to achieve this goal, and ensure food recognition in multicultural democracies, not security for all, the concerns about safety and hybrid regimes with one-party dominant rule, property rights of the commercial farming sector partisan protection, and threats to civil, cultural need to be addressed. and property rights.

Cultural relations: Most Afrikaans speakers are Afrikaans speakers of all communities have very conscious of and positive towards cultural historically made an important contribution to links with Flanders, Germany and the Netherlands. the creation of key institutions and productive Some of these links are also historically gains in South Africa.590 Their presence in areas institutionalized in academia, cultural circles, currently constitute a force for development and tourism, family acquaintances and local networks. stability during a period of political and economic fluctuation. Many community leaders are positive about strengthening mutually beneficial relationships The turnaround of South Africa’s economic with cultural institutions in Europe. The cultural decline will be unthinkable without the well-being sector in general and cultural entrepreneurship of Afrikaans communities and more than 6 million specifically also currently present opportunities Afrikaans-speaking citizens. As Francis Fukuyama

586. http://www.mckinsey.com/insights/africa/south_africas_bold_priorities_for_inclusive_growth. 587. http://www.mckinsey.com/insights/africa/south_africas_bold_priorities_for_inclusive_growth. 588. http://www.sanews.gov.za/south-africa/sa-shares-tourism-success-story-germany; http://www.statssa.gov. za/?p=4362. 589. Solomon A. Dersso, The human rights system and the issue of minorities in Africa,African Journal of International and Comparative Law, 20(1), 2012, pp 42-59. 590. See Hermann Giliomee, The Afrikaners: Biography of a people (Tafelberg: Cape Town, 2010); Mohamed Adhikari, Not white enough, not black enough: Racial identity in the South African coloured community (Double Storey Books, Cape Town, 2005); Heinrich Matthee,Muslim identities and political strategies (Kassel University Press, Kassel, 2008). 133

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has noted, the marginalization of such a skilled, but visible minority would only harm the diverse population of South Africa.

However, due to the impact of economic discrimination, concerns about security and cultural marginalization, hundreds of thousands of them have already emigrated. Many skilled professionals from other communities have also left during the two decades of ANC rule, with about eight professionals now leaving for every one professional entering South Africa. This trend represents a major brain drain and a damaging loss of job opportunities and value creation generated by those who are entrepeneurial and skilled.

At present, there already are many foreign businesses and citizens in South Africa. For example, there are about 600 German businesses and 350 Dutch businesses in South Africa, as well as about 100 000 German citizens living in the country. A stable environment for foreign businesspeople and citizens in many areas in South Africa will often depend on the presence and well-being of minority communities, businesses and NGOs. Foreign business and NGOs should consider the often overlooked opportunities for mutual benefits, shorter term transactions and longer term partnerships with them in South Africa and Africa.

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About the author

Doctor Heinrich Matthee is a strategy advisor and political risk analyst for companies and NGOs in the Middle East and Africa. He has a D Phil in Muslim politics from the University of Marburg, Germany. He is an associate of the Africa Studies Centre, Netherlands and a member of the South African Academy of Science and Art. During the Mandela presidency, he was a senior researcher in African security at the University of Stellenbosch. After 2000, he was a researcher/editor at the Emirates Center for Strategic Studies and Research in Abu Dhabi, and a Middle East analyst at Control Risks, London. He is the author of Muslim Identities and Political Strategies (Kassel University Press, Kassel, 2008) and articles on politics and economics in the Middle East and Europe.

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