SAMonitor

South African Monitor Assessing and Promoting Civil and Minority Rights in

Report 5 - Year-end 2015

Zuma’s hybrid regime, the economy and sustainable communities

Report researched, compiled and edited by Dr Heinrich Matthee

Commissioned by South African Monitor SAMonitor

2 SAMonitor

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.

Biannual reports, of which this is the fifth 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 abovementioned focus areas. South African Monitor www.sa-monitor.com [email protected] +27-72-7284541 +31-61-7848032

3 SAMonitor

4 SAMonitor

Table of Contents

Executive summary...... 9 Zuma’s hybrid regime, the economy and sustainable Communities...... 9

Part I: “Time to ditch the ANC”?...... 14 A major change in foreign media reporting on the ANC...... 14 Shift in consciousness among business...... 15 Shift in consciousness among policy-makers...... 15 Ideas have consequences...... 17

Part II: A new symbolic and political order...... 18 Weak fulfilment of the government’s security function...... 19 Partisan protection in the ANC’s hybrid regime?...... 20 The disappearance of non-racialism...... 21 Zulufication in the ANC...... 23 Coalitions with traditional authorities and local strongmen...... 24 New prominent sources of symbolic legitimation...... 25 A symbolic domain of nativism and violent scapegoat politics...... 25 A shrinking social contract and indigenous cultural groups...... 28 A rise in self-help initiatives and authority migration...... 30 Key dimensions of the new symbolic and political order...... 31

Part III: The shift to a hybrid regime...... 34 From a flawed democracy to a hybrid regime...... 34 ANC intolerance of dissenting views...... 36 ANC politics “eats the state”...... 37 Pressures for higher taxes...... 39 Intense factional competition...... 39 ANC funding troubles ...... 41 Presidentialism and the executive...... 42 Party-state separation, cadre deployment and patronage...... 42 Reshaping markets and the democratic playing field...... 44

Part IV: The legislature, elections and violent politics...... 45 Weak separation of the executive and legislature...... 45 The non-alternation of power in a hybrid regime...... 46 The elections of 2014...... 47 A hybrid regime resting on 35% of eligible voters?...... 48 A split in the Tripartite Alliance...... 49 Student protests indicate rebellious constituencies...... 50 The non-democratic tenor of politics...... 51 Political assassinations in a hybrid regime...... 53

Part V: The politics of disorder and pressures on the judiciary...... 54 Decreased separation of powers...... 54 Zuma and the arms scandal...... 54 Zuma and the Nkandla scandal...... 56 5 SAMonitor

The increased role of politicized security services...... 57 ANC cadre deployment in the police...... 59 The justice system and the judiciary...... 60 Legal command and rent extraction by ANC cadres...... 62

Part VI: Universities, the media and attempts at ANC control...... 63 Pressures on the autonomy of universities...... 63 Media freedom...... 64 Potential for internet censorship...... 66 Strained relations between the ANC and critical journalists...... 67

Part VII: The threat to property and investor rights...... 69 Increased political intervention and selective patronage...... 69 Foreign business distrust and limited investment...... 69 Growing suspicion of ANC policies in business circles...... 71 Foreign business perceptions worsen...... 73 ANC plans to weaken property rights...... 74 Constitutional Court neutralized property rights clause in Constitution...... 75 Disempowered foreign and South African property owners...... 76 Creeping state ownership in the mining and energy sectors...... 77 The weakening of foreign investor protection...... 78 The Investment Bill in the context of the Restitution Bill...... 80 Increased state ownership and control of the lucrative security industry...... 81 ESKOM and the ANC’s power failure...... 82 “Our turn to eat”...... 82 Patronage and the emptying state coffers...... 83

Part VIII: Foreign policy pivots to China, Russia and anti-Western rhetoric...... 85 Looking to China for symbolic and economic leadership...... 85 Choosing Russia against “US-sponsored destabilisation”...... 87 Anti-US bias and paranoia...... 88 Anti-Western posturing and legitimization...... 89 Leaving the International Criminal Court?...... 89

Part IX: The political risks to business in the next five years...... 90 Part X: Rebuilding the private sector and sustainable communities...... 93

Addendum: Media freedom in South Africa: A luta continua? A guest contribution by Prof Lizette Rabe...... 97 Context...... 97 Is it a matter of history repeating itself?...... 98 Post-1990: Freedom?...... 99 Real threats, real infringements, real parliamentary bills...... 100 A luta continua...... 101

About the author...... 103 About the guest contributor...... 103

6 SAMonitor

List of Abbreviations

ACMS - African Centre for Migration and Society ANC - African National Congress BEE - Black Economic Empowerment BEPS - Base Erosion and Profit Shifting BITS - Bilateral Investment Treaties CASE - Community Agency for Social Enquiry CDU - Christian Democratic Party (Germany) CGT - Capital Gains Tax CIA - Central Intelligence Agency (United States of America) COSATU - Congress of South African Trade Unions DA - Democratic Alliance DDR - German Democratic Republic DP - Democratic Party DTI - Department of Trade and Industry EFF - Economic Freedom Fighters ESKOM - Electricity Supply Commission EU - European Union FDI - Foreign Direct Investment FPB - Films and Publications Board GATS - General Agreement on Trade and Services GCI - Global Competitiveness Index GCIS - Government Communications and Information Service GDR - German Democratic Republic ICASA - Independent Communication Authority of South Africa IFP - IMF - International Monetary Fund ISS - Institute for Security Studies JSC - Judicial Services Commission MDDA - Media Development and Diversity Agency MIT - Massachusetts Institute of Technology MK - Umkhonto we Sizwe MP - Member of Parliament MPRDA - Mineral and Petroleum Resources Development Act, 2002 NDP - National Development Plan NDR - National Democratic Revolution NEC - National Executive Committee NECSA - Nuclear Energy Corporation of South Africa NGC - National General Council NGO - Non-governmental Organization NIA - National Intelligence Agency NP - National Party NUMSA - National Union of Metalworkers of South Africa PPIB - Promotion and Protection of Investment Bill, 2013 7 SAMonitor

R2K - Right2Know Campaign SABC - South African Broadcasting Corporation SACCI - South African Chamber of Commerce and Industry SACP - South African Communist Party SADTU - South African Democratic Teachers Union SAFRI - Southern Africa Initiative of German Business SAIRR - South African Institute for Race Relations SANEF - South African National Editors’ Forum SAPS - South African Police Service SCA - Supreme Court of Appeal SEC - Securities and Exchange Commission SIA - Security Industry Alliance SOES - South African State-Owned Enterprises SONA - State of the Nation Address SPD - Social Democratic Party (Germany) SSA - State Security Agency UDF - United Democratic Front UK - United Kingdom UN - United Nations US - United States of America WTO - World Trade Organisation

8 EXECUTIVE SUMMARY SAMonitor

Zuma’s hybrid regime, the economy and sustainable Communities

Executive summary

New symbolic and political order: In South Africa a new political and symbolic order has effectively replaced the liberal democratic constitutional order, built on the consensus between the African National Congress (ANC) of Nelson Mandela, business and the National Party (NP) of F.W. de Klerk in the mid-1990s. By 2015, nine key dimensions have reached a critical mass and have combined to form a new political order under .

Foreign business, cultural and education institutions, and NGOs are advised to give renewed attention to two important generators of stability and prosperity: the private business sector and institutions for sustainable communities.

Hybrid regime: The first key dimension of the new order is a shift to a hybrid regime under Jacob Zuma’s ANC. The locus of politics has shifted from accountable democratic institutions to a field of power in which weak democratic institutions and non-democratic institutions interact.

Oligopoly of violence: The second key dimension is an oligopoly of violence instead of the state’s monopoly of violence. The ANC government does not consider a restoration of the security of citizens and businesses as a state priority. Elections still occur. However, intimidation, threats of violence, rehearsals for violence, violent protests, and even political assassinations form part of the new rules of the game and the incentive systems in dealing with political claims, counter- claims and contestation. 9 SAMonitor EXECUTIVE SUMMARY

State rests on new coalitions: The third key Resource appropriation: The seventh key dimension is a new, more volatile and fragmented dimension of the new political order is a different basis of the state’s authority and power. The conception of property rights and the conditions bureaucracy’s capacity remains limited and be­ of wealth, which often clashes with the existing comes less efficient in service delivery. In an liberal Constitution. The selective economic em­ effort to maintain or regain some control, the powerment of politically-connected actors and the ANC government and its factions are reshaping politics of the belly increasingly aim at gaining access the political order around different local deals, to and control over the socio-economic formations relationships and settlements. At present, the of some indigenous and foreign minority cultural active realignment with traditional authorities is groups. The nativist symbolic discourse interacts especially noticeable. with this process and sometimes serves as its legitimization. Both greed and grievance interact. Shrinking social contract: The fourth key dimension is that the new political order also promotes a The ANC government presents its approach as shrinking social contract. Both the scope and the the sole approach to African liberation in South nature of the relationship between the governing Africa, excluding or silencing other more inclusive, party and the diverse population have changed. democratic, federal and social enterprise-based This relationship now includes a narrower re- models of African liberation. Its shrinking social racialized politics and the authoritarian and ethnic contract reinforces the limited and partisan dynamics in the ANC. It is a stratified and exclusivist protection of citizens whose contributions would be project of nation-building, privileging some groups needed for a successful model of African liberation. of citizens above others. It also legitimizes scapegoat politics by government and non-government actors. Links and mutual obligations between some groups and those in power, as well as patron-client Pro-Russian and pro-Chinese foreign policy: The relationships, dominate the understanding of rights eighth key dimension is a foreign policy that clearly and entitlements. Among key ANC constituencies privileges Russia and China, while being neutral and leaders, this new social contract supersedes or less favourable to Western powers. In addition, the understanding of the South African state as an interventionist and developmental state and rooted in citizenship, in impartial service delivery, ANC-aligned business actors are much more evi­ in the Constitution, and in loyalty to other citizens. dent in economic diplomacy and various forms of pro­tectionism. Domestic short-term political prio­ Non-pluralist exclusion of opponents and minorities: rities are prioritized above Western foreign direct The fifth key feature is a limited responsiveness as far investment. as the claims or needs of political opposition groups and some smaller ethnic groups are concerned. This Self-help initiatives and authority migration: The relationship with the diverse population differs from ninth key feature is the limited but robust evolution the inclusive non-racialism of the Mandela era. It of capacity and self-help initiatives within cities, also serves to legitimize government actions and to communities, and the private sector. This feature divert attention from failures in service delivery and will involve authority migration and shape the new government performance by scapegoat politics. political order.

Symbolic de-Westernization: The sixth key Between a modular and a mediated state: The new dimension is the promotion of de-Westernization political order already constitutes an asymmetric in the symbolic domain and also the political modular state. Organizations and institutions that rules of the game. Nativist identity discourses and do not form part of the central state fulfil several new combinations of Christianity and indigenous state functions in different ways in some areas African religion are increasingly prominent in the or communities. Although the ANC government domestic symbolic domain. However, as is visible theoretically has the capacity to fulfil at least some in the xenophobic tensions and attacks, and ANC of these functions, it accepts this modular state as responses to it since 2008, the nativist discourse part of its governance model. excludes not only indigenous Western and Asian Africans, but also foreign Africans and Asians. 10 EXECUTIVE SUMMARY SAMonitor

In some areas of South Africa, the dynamics of of protests constitute forms of political competition self-help initiatives and authority migration may in aimed at gaining access to power and wealth outside time evolve into a mediated state. In those zones, elections. “rule of the intermediaries” will act as substitute for the rule of the central state. The government Unaccountable presidentialism: Another driver will accept this situation and try to align with these of the hybrid regime is an unaccountable presi­ actors, not voluntary, but based on necessity. dentialism that has exceeded the constitutional bounds of the office. Pres Jacob Zuma has not been held accountable by his party or Parliament in a one- Hybrid regime party-dominant state. The media and institutions like the Public Protector have been able to identify This report finds that during the more than six years and admonish examples hereof. However, in the of Pres Jacob Zuma’s rule, South Africa has moved current regime, the democratic checks and balances from a flawed democracy to a hybrid regime. This have not been able to restrain the executive in this transformation is partly reflected in a major shift regard. in the international media’s reportage on ANC rule since 1994. The securitization of politics: The securitization of politics has become a trend in the hybrid regime. New locus of politics: In South Africa’s hybrid regime, A longstanding non-pluralist political culture the incentive systems and the rules of the political in the ANC, combined with increased factional game have changed. The locus of politics is not in struggles over positions, access to resources and the legislature or elections. The locus of politics has opportunities within the ANC and its allies, will moved to a field of power where democratic and reinforce this development. Suspicion and fear will non-accountable actors and processes interact. The set the tone in the inner circles of power in the hybrid regime could remain in place for the next next five years. To the thousands of tourists and decade, irrespective of whether Zuma or another businesspeople visiting South Africa, this will not ANC president is in power. necessarily be visible.

One-party dominance and state capture: One non- Protests and assassinations: Politics in the hybrid accountable factor is the ANC as a ruling party after regime has also acquired a non-democratic tenor. twenty-one years in a one-party-dominant state. It Even Archbishop Emeritus Desmond Tutu has has a non-pluralist political culture. Through its policy referred to ANC intimidation. Political protests and of cadre deployment, it has captured most state assassinations have become an institutionalised institutions and watered down the separation of part of local political alternation. powers. State institutions are now largely politically partisan, and the arena of factional struggles. Opaque decision-making: Opaque decision-making, linked to patron-client relations now permeate the Uneven electoral and economic playing fields: The executive and bureaucracy. The judiciary and media ANC’s capture of the state has allowed the party remain spaces of freedom, but are under pressure. to become as important a gatekeeper to power as elections, if not more important. It has expanded Democratic decline: The interaction of the its hold on key constituencies and the market, also abovementioned forces has created a distinctive through selective patronage and crony capitalism. hybrid regime. They have resulted in democratic Both the electoral and the economic playing fields decline and transformed the political rules of have been made uneven. the game, institutions and incentive systems in South Africa. The beautiful landscapes, vibrant Limited participation: In elections there has been a communities and business opportunities of South marked decline in the registration and participation Africa are still present, but these dynamics will of eligible voters since 1994. In 2014, the ANC only dominate daily politics in the next five years. attracted an estimated 35% of eligible voters’ support compared to 54% in 1994. High levels of emigration Three drivers: Unfortunately, three drivers will at least partly reflect the lack of responsiveness to reinforce the dynamics of a hybrid regime and citizens by the existing institutions. A high number democratic decline in the next five years: they are 11 SAMonitor EXECUTIVE SUMMARY intensified factional competition in the run-up on impact on existing government undertakings to elections and the presidential succession; the towards business. further politicization of the security forces and securitization of politics to prop up presidential International ANC fundraising: The search for new rule; as well as the weak economy and more limited sources of income will coincide with an increased state resources. effort at economic diplomacy, both formal and informal. The diplomacy will be couched in the rhetoric of branding, using South Africa’s many Some consequences and unquestioned opportunities. However, the actual results would at least partially strengthen Increased factional struggles: The hybrid regime the presidential and partisan ANC networks in the could remain relatively stable. However, factional hybrid regime, rather than the South African state, struggles inside the ANC are likely to increase in communities and citizens as a whole. the run-up to the 2016 local elections, the 2017 ANC leadership alternation and the 2019 general Integrity and reputational risks: Factional struggles elections. for scarce resources will drive efforts to increase state income through these measures and Economic policy uncertainty: Economic policy others, which may be more indirect and informal. swings and delays due to the infighting between Unaccountable presidentialism, local big men different factions seem likely in the next five and patron-client networks may play a role in this years. Policy uncertainty will be experienced regard. There are different business and legal codes most by companies in sectors most exposed to of conduct in different jurisdictions; international the government’s political priorities or regulatory business is advised to heed best practices regarding and licensing power. Minerals, energy, security, integrity risk and reputational risk. agriculture, telecoms and pharmaceuticals would be among these sectors. Favouritism to Russia and China: The factional search for more resources in the hybrid regime More state interventionism: The ANC has proceeded could result in an increased dependency on foreign with several regulations, policy initiatives, bills and patrons like Russia, China or other political and laws regarding mining and energy, the security business actors. The field of competitors and the industry, affirmative action and empowerment importance of specific competitive advantages of issues, land, patents, and foreign investors in business may change suddenly. general. The common underlying policy in all of these is the same: they greatly increase the Uneven service delivery: The levels of visible state ANC government’s interventionist powers in the mismanagement and operational risk are likely to economy. remain high or sometimes even rise. This state of affairs will continue to have an effect in many areas Weaker property rights: Planned and actual of service delivery, such as the security of citizens measures weaken property rights and reduce and farmers, electricity supply, water management, private-sector autonomy, which would strengthen waste management, roads, education and postal the position of crony capitalists with links to ANC services, and others that may arise. The impact factions compared to other businesses. will differ per province and locality, with pockets of adequate or service delivery in provinces and Looking for new resources: The high levels of local areas. state debt and the needs of the ANC’s patronage networks will drive efforts to look for new sources Based on the internal and external dynamics of the of income, both domestically and internationally. ANC government, if government interventions do The value of some state-run corporations, but also not have the required effect, there is a risk that other assets or opportunities of which it should such a result would not trigger a reassessment be the public custodian, could be capitalized or of the intervention, but rather a stronger form of mortgaged. Beneficiation requirements may also intervention. be emphasized. Sometimes this will have a knock-

12 EXECUTIVE SUMMARY SAMonitor

Labour unrest: Factions within trade unions and Entrepreneurship training a priority: Under the trade unions will compete intensely with each ANC government, parts of the education sector other for members, networks, power, status and have become among the worst in the world, resources. As a result, labour unrest will be a while the autonomy of others is threatened. major risk during the next five years. Due to the International business may find it worthwhile to context in which it will be occurring, the potential conduct corporate social responsibility projects politicization of disputes could be fast and assume that focus on entrepreneurship training and militant forms. business education. If the projects involve cooperation between foreign and South African Unexpected shifts and high political risk: Business institutions of public education, strict criteria and will be exposed to diverse forms of political risk in monitoring to reinforce the remaining spaces of the next five years, and political risk will be high academic freedom are recommended in policy- in several sectors and provinces. Unexpected relevant education and research. However, it is major shifts and unforeseen high-impact events recommended that business and NGOs focus are possible. This has already happened in various on projects involving private and community forms, including the sudden electricity crisis and education institutions. the outburst of xenophobic attacks in the first half of 2015. There is a limited but robust evolution of capacity and self-help initiatives within cities, communities, Opportunity cost: Many attractive business and the private sector. This trend will involve an opportunities remain in South Africa. Businesses authority migration over time which will shape and NGOs with a high risk appetite will remain the new political order. Business and NGOs are involved or become active in South Africa. advised to identify potential partners and to use However, due to the increased political risk of the the opportunities involved. hybrid regime, some actors will also consider the opportunity cost when comparing South Africa to other markets.

13 SAMonitor PART I

A major change in foreign media reporting on the ANC

There has been a major change in the tenor of media reports on ANC rule. In 1994, foreign media praised the coming to power of the ANC under Nelson Mandela. During the past few years, however, mainstream media in Europe and the United States (US) have become much more critical: before the May 2014 elections, on 3 May 2014, The Economist published a report entitled: “Time to ditch Mandela’s party”.

On 7 October 2013, The Economist already wrote:

The continent’s biggest democracies, South Africa and Nigeria, have not lately been a compelling advertisement for representative government. South Africa, ruled by the African National Congress since 1994, is in danger of becoming a de facto one-party state. Part I The American The Wall Street Journal on 6 September 2013 published an article entitled “South Africa’s Ruling ANC Loses Its Luster”. The Canadian Globe and Mail of 21 February 2014 “Time to ditch stated: “After Mandela, South Africa has fallen into a leadership vacuum”. The German Zeit reported on 18 July 2013 that self-enrichment and nepotism in government is corroding the the ANC”? capabilities of state institutions. The legacy of Mandela is breaking up, stated German journals like Cicero on 4 October 2013.1

1 http://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/. 14 PART I SAMonitor

“Shadowy arms trade catches up with President corruption. This was far higher than the 41% global Zuma”, was another heading in the German Welt average, and was matched only by Indonesia.4 on 22 August 2013, covering the arms trade scandals. On 26 August 2013, the Financial Times in American Chamber of Commerce SA executive the United Kingdom (UK) wrote about the problem director Carol O’Brien stated in February 2015 that of political assassinations under the heading the plethora of legislation coming out of South “Whistleblowers have to fear for their lives in a Africa is causing “jitters” in US businesses with country where corruption runs deep”. operations based in the country.5 In a presentation to the Parliamentary Portfolio Committee on Trade By 7 April 2015, Bloomberg reported: “Zuma rules and Investment in September 2015, the Chamber supreme over South African elites engulfed by of Commerce summarized: chaos”. On 13 May 2015, the Financial Times had a heading: “Power failure: South Africa’s president Confidence in South Africa is at its lowest ever: is mired in a series of scandals that have tarnished The first expropriation will result in a flight of his reputation and that of the ruling ANC”. “The investment out of SA. Already happening.6 political crisis in South Africa: Country without leadership”, reported Der Tagesspiegel on 5 June 2015.2 Shift in consciousness among policy- Shift in consciousness among makers business The shift in consciousness is not restricted to ANC policy intervention in the economy and the international media. Policy think tanks also weakening property rights are also increasingly registered the shift. The German Social Democratic viewed with trepidation. “South Africa terminates Party (SPD) is part of the coalition government the investment treaty with Germany”, Reuters of Chancellor Angela Merkel. Renate Tenbusch, already reported on 25 October 2013. “‘Threatening’ the resident director of the SPD’s Friedrich Ebert expropriations in South Africa”, was the heading in Foundation office in Johannesburg, has called the the Neue Zürcher Zeitung on 14 April 2015.3 ANC a crisis party. In 2014 she wrote that the Nkandla scandal involving Pres Jacob Zuma symbolized a A survey by global risk consultancy firm Control political elite focused on self-enrichment. Risks showed that more than half of global businesses surveyed would avoid South Africa due The respect for South Africa and the political to perceived levels of corruption. The Control Risk leadership that peacefully overcame the Corruption report for 2015 surveyed over 1 600 apartheid system has disappeared on a broad legal and compliance professionals in companies front. In the international and regional context across the world – including sixty from South Africa. South Africa always disillusions the expectations Of the respondents, 55% said they would avoid from a civil authority regarding human rights, doing business in South Africa because of the risks multilateralism and development.7 – the highest rate out of all countries surveyed. Of all South African respondents, 61% said that The Konrad Adenauer Foundation, which is linked business deals on which they had already spent to Merkel’s Christian Democratic Union (CDU), time and money had terminated due to the risk of also has an office in Johannesburg. In an election

2. “Die politische Krise in Südafrika: Land ohne Führung”, Der Tagesspiegel, 5 Juni 2015. 3. http://www.nzz.ch/wirtschaft/drohende-enteignungen-in-suedafrika-1.18521632. 4. http://businesstech.co.za/news/government/101070/corruption-in-south-africa-is-scaring-global-businesses-away/. 5. http://www.bdlive.co.za/economy/2015/02/20/barrage-of-new-laws-alarms-us-firms-in-sa. 6. https://www.thedti.gov.za/parliament/2015/Amcham_15Sept2015.pdf. 7. http://www.jpg-journal-de/kommentar/artikel/20-jahre-demokratie-in-suedafrika-ein-land-in-der-krise-369/. 15 SAMonitor PART I report in 2014, its head, Dr Holger Dix, refers to the which deserves international condemnation. political intimidation by a provincial ANC minister The biggest losers are the innocent victims of Mr who connected continued welfare grants for poor Bashir’s cruel policies in Darfur who are still being people to their vote for the ANC, which suggests “a denied justice. Members of the international flawed understanding of democracy”.8 court like South Africa are supposed to respect its warrants. The charges against Mr Bashir include The governments of Germany and South Africa murder, acts of extermination and rape among naturally continue to try and find common ground other abuses in Darfur, where 300,000 people and cooperate on various economic and security have been killed and 2.5 million displaced since interests, including terrorism in Africa. However, as 2003.11 in the case of relations with the United Kingdom and the United States, on various issues there is a Dr Abiodun Williams, president of The Hague distinct chill in the diplomatic air.9 Institute for Global Justice, referred to “a clear abuse of executive authority by the South African Behind the scenes the relations between government … Clearly, the Bashir case is not in Pretoria and Berlin are considered to be tense. keeping with Mandela’s ideals”.12 In November 2014 the Federal Minister of Foreign Relations Frank-Walter Steinmeier was South Africa’s foreign policy has clearly pivoted in South Africa, among others to participate in to China and Russia during Zuma’s presidency. the eight session of the German South African This policy differs sharply from the more balanced Binational Commission. It then became clear multipolar approach under Nelson Mandela’s that South Africa had already been focusing presidency. A Better Africa in a Better and Just its political, economic, academic and cultural World, a discussion document of the ruling ANC relations on China and Russia. German business published in 2015, reflected this shift. It praised people have for years already exercised sharp China’s ruling Communist Party as a symbolic and criticsm on South Africa – for a long time also economic policy example, expressed support for in public.10 Russia, quoted Lenin, regretted the Fall of the Berlin Wall in 1989, and expressed a conspiratorial The ANC government’s foreign policy periodically view of US imperialism.13 diverts from Western powers’ concerns regarding human rights and rule of law. On 15 June 2015, for On 5 September 2015 The Economist responded to example, the Sudanese president Omar Al-Bashir the document with an article entitled “Clueless and was allowed to leave South Africa, despite an immoral: A country that symbolises human rights International Criminal Court warrant for his arrest. and freedom is turning its back on both”. The Irish The New York Times commented: Times of 21 September 2015 responded with a heading: “South Africa adopts strong anti-Western This could not have happened without the stance”.14 complicity of the South African government,

8. http://www.kas.de/suedafrika/de/publication/37569. 9. http://www.politicsweb.co.za/documents/chancellor-house-the-case-against-hitatchi--us-sec; http://www.bdlive. co.za/business/trade/2015/09/18/sa-us-talks-floundering-says-nkoana-mashabane;; http://www.bdlive.co.za/ business/trade/2015/09/11/us-tariff-threat-as-dispute-drags-on; http://mg.co.za/article/2015-08-13-diplomatic- fracas-brews-over-ngo-freedom-now. 10. https://2010sdafrika.wordpress.com/2015/11/06/suedafrikas-praesident-in-deutschland-erwartet/. 11. http://www.nytimes.com/2015/06/16/opinion/south-africas-disgraceful-help-for-president-bashir-of-sudan.html?_r=1. 12. http://www.theguardian.com/global-development-professionals-network/2015/jun/24south-africas-failure-arrest- al-bashir-not-in-keeping-mandelas-ideals. 13. 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”. 14. http://www.economist.com/news/leaders/21663226-country-symbolises-human-rights-and-freedom-turning-its- back-both-clueless-and; http://www.irishtimes.com/news/world/africa/south-africa-adopts-strong-anti-western- stance-1.2358995. 16 PART I SAMonitor

Ideas have consequences policy-makers in far-away and largely sheltered neighbourhoods. To what degree will foreign policy- makers and international business – and academic The international media, European business people, analysts – acknowledge the new dynamics of the some diplomats and some policy think tanks ANC’s hybrid regime in South Africa? already acknowledge the new dynamics of a hybrid regime in South Africa. However, disincentives This report analyses several dimensions of the to acknowledging democratic decline still exist current political and business context in South in some circles. Stephen Brown states that most Africa. The shift in international views, a new sub-Saharan African countries are neither liberal symbolic and political order, and the shift toa democracies, nor fully authoritarian. Officials from hybrid regime are covered first. Other chapters Western governments that provide assistance to cover the legislature, elections and violent politics, these hybrid regimes often become apologists the politics of disorder and pressures on the for their lack of democracy. Rather than cogently judiciary, and the ANC attempts of control of the enquiring why democracy promotion activities media and other cultural institutions. The report should not be a priority, such donor officials concludes with chapters on the threat to property frequently claim either that their host country is and investor rights, foreign policy pivoting to China more democratic than it actually is, or that it could and Russia, the political risks to business in the next not be any more democratic for the time being.15 five years, and the opportunities in rebuilding the private sector and sustainable communities. The position of citizens and communities in African countries is much more vulnerable than that of

15. Stephen Brown, “‘Well, what can you expect?’: donor officials’ apologetics for hybrid regimes in Africa, Democratization in Africa: Challenges and Prospects”,Democratization , 18(2), 2011. 17 SAMonitor PART II

The broader symbolic and political order diverges sharply from the non-racial and conciliatory model of public discourse during Nelson Mandela’s presidency in the late 1990s. The accumulated impact of policy iterations and policy pivots during the Zuma presidency, as well as trends and events not directly controlled by the ANC, is that of a new symbolic and political order.

One can analyse this new order by looking at the state in South Africa. In political theory, a state entails a population, a territory, a government with a monopoly of violence, and the capacity to enter into relations with other states. Alan Whaites also distinguishes between the political settlement between elites to end and prevent conflicts, the survival functions, like protective and enforcing security, law and generating revenue, and the expected functions by citizens.16

The new political order entails nine key dimensions. The first key dimension is that the form of government has shifted to a new hybrid regime under Jacob Zuma’s ANC. The locus of politics has shifted from accountable democratic Part II institutions to a field of power in which weak democratic institutions and non-democratic institutions interact.17 This dimension is analysed A new in Parts III to V of this report. The second key dimension is that foreign policy has pivoted from a balanced multipolar approach during the Mandela era to a clear privileging of symbolic relations with China and Russia. This dimension is analysed in Part VIII of the report. The other seven and political dimensions are analysed below. order

16. Alan Whaites, States in Development: Understanding State-building (Department for International Development, London, 2008), pp 7-10. 17. The specific features and dynamics of this shift is analysed in later chapters. 18 PART II SAMonitor

Weak fulfilment of the Over the past two years, the number of armed robberies has increased by over 18 000 cases, or government’s security function 50 more attacks each day on average. This has contributed to the increase of murders.21 Estimates While the government enjoys external sovereignty on rape vary from 140 to 1 200 incidents per in the international world, its monopoly of violence day. Unfortunately, the value of human life is not and ability to protect the population has shrunk considered high by everyone.22 markedly since 1994. Prof Susan Booysen stated after the xenophobic attacks in 2015: Due to the uneven quality of policing and no independent audit of the data-gathering process of The government has lost authority over vast crime statistics, the statistics of crime of Interpol tracks of South Africa, over the underworld where have often been much higher than the statistics of the South African Police Service (SAPS). Police xenophobia, looting and parading mobs rule.18 statistics are widely regarded as underestimating Violent crime has shaped the new democracy, and the situation. Security researcher David Bruce is shaping the current hybrid regime. Since 1994, concludes: more than 400 000 people have died due to violent crime and hundreds of thousands have been raped The implication is that the non-recording of in South Africa. Over the past three years, the crime is widespread within the SAPS and that South African murder rate has increased from 30 this non-recording is responsible for much of murders per 100 000 people to 33. This is five times the reduction in violent crime that has been higher than the global average of 6.2 per 100 000. reported in statistics over recent years. The According to the United Nations Office on Drugs implication of this, in turn, is that current and Crime, South Africa ranked eighth worst out of crime statistics cannot be regarded as a reliable 167 countries with data available for 2012. 19 indicator of trends in crime, particularly in violent crime.23 Between April 2014 and March 2015, on average 49 people were murdered each day. This is on According to thinkers from Hobbes to Whaites, the average two more killings a day than in the provision of security is one of the state’s survival previous year, and a staggering six more deaths a functions, if not the key one. Yet, Zuma did not day than in 2011/2012. On the one hand, the risk consider the above state of insecurity sufficiently of murder differs so vastly between areas that important to address it in depth in his 2015 State half of the murders that occurred in South Africa of the Nation Address (SONA). in 2014/2015 took place in only 12.3% of police precincts. On the other hand, one in five police When assessing the impact of violent crime on stations in predominantly affluent metropolitan South Africa’s citizens, it is of major importance to and rural areas and towns have a murder rate of take note of the psychological impact of fear. As less than 12 per 100 000. Just over 10% of police noted by foreign psychologists visiting South Africa, precincts have a murder rate of zero.20 in some parts of the country a continuous fear of

18. http://www.iol.co.za/sundayindependent/xenophobia-a-conundrum-for-sa-1.1847245#.VTOqrZUcTIV. 19. https://www.issafrica.org/iss-today/murder-by-numbers. 20. https://www.issafrica.org/iss-today/murder-by-numbers. 21. http://www.issafrica.org/iss-today/can-we-blame-you-now-president-zuma. 22. http://www.issafrica.org/publications/policy-brief/rape-and-other-forms-of-sexual-violence-in-south-africa; http:// www.news24.com/Multimedia/South-Africa/SA-named-world-rape-capital-20120420; http://africacheck.org/ reports/will-74400-women-be-raped-this-august-in-south-africa/; http://www.dailymaverick.co.za/article/2014-11- 05-the-killing-of-anni-south-africa-where-pretty-girls-should-expect-to-get-raped/#.VGd915UcTIU. 23. 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, Pretoria, 2010), pp 5-6, 15. 19 SAMonitor PART II violent crime is prevalent that usually only emerges Gareth Newham of the Institute for Security Studies in areas of armed conflict. The reason is that a violent (ISS) states: incident can occur anywhere, and at any time, in a completely arbitrary, but brutal manner.24 The police cannot become more effective because the national commissioner of police In this regard, the fear of violent crime against was a political appointment and has no police oneself and loved ones in private spaces like homes experience. The system for a professional plays an important role. The incidence of armed ethos has collapsed and lower level officials house robbery has doubled in the past decade. It are excluded because they aren’t politically- involves hold-ups of a home’s inhabitants, often aligned. If people are not seen as a part of the entailing threats or actions involving assault, rape, ruling factions and they are killed, there is little torture and murder of children, the elderly, the chance of an investigation.27 disabled or women. A particularly serious category of crime, is A global crime study, conducted by renowned attacks on the small community of about 30 000 global polling group Gallup in December 2012, commercial farmers. These attacks are being showed that South Africa ranked second behind perpetrated against members of all groups; Venezuela on the list of countries where adults however most of the victims of such attacks are were afraid to walk alone at night on streets where Afrikaner farmers. they lived.25 The low government responsiveness to citizen demands regarding this issue is another dimension of the current political order. More than 3 300 farm attacks have been recorded in the period 1991 to 2014, with Partisan protection in the ANC’s almost 2 000 farmers being killed.28 In hybrid regime? the case of the killing of the English- speaking Peter Hackland in 2013, for Public trust in the police is deteriorating. Future Fact released a recent survey that reveals 75% example, 30 permanent workers and 40 of adult South Africans agree with the statement temporary workers and their families “a lot of police are criminals themselves”. also lost their source of livelihood as a Furthermore, 44% think there is “no point” 29 in reporting crime to the police, and one in result of the farmer’s death. three people said they are scared of the police. According to Amnesty International’s report on Few of these incidents involve large-scale theft. South Africa for 2014/2015, allegations of torture Usually arms, vehicles, mobile phones and cash are against members of the SAPS and the Department robbed, but combined with high levels of brutality, of Correctional Services were rife.26 violence and even torture. Eileen de Jager and

24. 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/. 25. http://www.iol.co.za/news/crime-courts/south-africans-live-in-perpetual-fear-1.1581044#.UmgmmL7CRD4. 26. https://www.amnesty.org/en/countries/africa/south-africa/report-south-africa/. 27. http://allafrica.com/stories/201310220779.html?page=3. 28. 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. 29. “Widow pours out her heart”, The Witness, 23 October 2014; “Ixopo farm attackers jailed for life”, Media 24, 31 October 2014. 20 PART II SAMonitor

Roelien Schutte, two sisters who clean up crime tacit support from national leaders. In the case of scenes nationally, say that they have seen a definite farm murders, also in labour unrest and political increase in extreme violence in farm attacks. They assassinations, the life stories of the victims often are of the opinion that if the public were to realise get lost in the bigger maelstrom of politics and what actually happens during such attacks, it predation.35 would serve as a wake-up call that would mobilise communities. De Jager states: The disappearance of non-racialism Victims are often tortured before being dragged behind cars, or they are mutilated with boiling At present, the economy has diverse socio- water. It is beyond insane.30 economic formations and wealth inequalities resembling France and the Francophone region Even the organization Genocide Watch of US in Africa combined, or the region of Mexico, the Prof Gregory Stanton voices concerns about farm Caribbean islands, the United States, and French attacks and murders.31 However the ANC refuses and Anglophone Canada combined. However, to categorise this as a priority crime, deserving these vast differences in histories and wealth are of special police strategies to prevent such compressed in a single country of an estimated 54 incidents.32 Food security has dropped in the past million people. five years to include only 45.6% of the population, yet no priority attention is given to the key Among them, 6.17 million people of all population economic actors and vulnerable community.33 groups pay 99% of all personal income tax. Many, if not most of them, support opposition parties.36 The Several factors politicize the issue: the ANC’s social welfare system they help to fund, supports at National Democratic Revolution (NDR) policy, least sixteen million people. The growing informal also regarding land possession and ownership; economy also constitutes a part of the arena of its cadre deployment, also in the police; its focus political competition. on own patronage rather than service delivery; its decreasing accountability to citizens and In the case of South Africa, the public resources communities; and ANC factions that want the land structure rests on a complex set of relationships of many farmers to be transferred to ANC cadres. between the ANC-controlled state, as well as emerging black elites in the ANC establishment The Africanist, Prof Patrick Chabal, has noted in and large private sector corporations. This set of some cases elsewhere in Africa that rulers have relationships supports the ANC’s use of a number allowed violent crime to restructure the political of policy levers. Relatives and allies of Pres environment in its favour.34 Local “big men” have Zuma, including Khulubuse Zuma and Duduzile often played a role in this regard, sometimes with Zuma, and ANC insiders like

30. http://news.iafrica.com/sa/829892.html. 31. http://www.genocidewatch.org/aboutus/bydrgregorystanton.html; http://www.genocidewatch.org/ genocide/8stagesofgenocide.html. 32. http://genocidewatch.net/2012/12/07/country-profile-south-africa/; http://www.citypress.co.za/news/farms-are- not-special-areas-minister/; http://mybroadband.co.za/vb/content.php/6070-Farms-do-not-deserve-more-police- focus-Police-Minister. 33. http://www.news24.com/SouthAfrica/News/Food-security-in-SA-declining-study-20130806. 34. Patrick Chabal and Jean-Pascal Daloz, Africa Works: Disorder as Political Instrument (International African Institute, London, 1999). 35. 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. 36. 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. 21 SAMonitor PART II and , participate and benefit to a potential unifying discourse between an emerging disproportionate degree.37 The American Christian middle class and millions of poor citizens. This form Science Monitor of 10 July 2013 noticed that of racial identity politics often tends to racialize and regionalize African identity: it marginalizes or even denies the African identities and contributions Black-empowerment schemes to redress of Western and Asian citizens in South Africa. apartheid’s injustices have been widely Implicitly, it also marginalizes or denies the African abused to enrich ANC-linked people. Mr identities of Berber and Arab North Africans. Zuma’s relatives and pals have hugely The policy of Black Economic Empowerment (BEE) benefited ... is often represented as if it constitutes an advance for all members of one racial group. However, it has Historically, the ANC experienced tensions between become a partisan political programme. During its professed non-racialism and racial nationalist execution in the hybrid regime, it is closely linked convictions among its leaders and members.38 to the political friends and relatives of one political During its pre-1994 struggle, its international organization among others of the racial group, the supporters often referred to its non-racial ideals ANC. BEE also provides a disincentive to members of and credentials. However, after 1994, the ANC the elite to defect and form an electoral alternative also retained the racial classification system of the in the hybrid regime. population used during the apartheid system. It has also gone further. Ineke van Kessel states: According to Moeletsi Mbeki, a prominent economist and the brother of former Pres Thabo Mbeki, BEE An exclusive brand of African nationalism, also has not benefited black business people, but in fact labelled “nativism”, seems set to become the inflicted them a fatal blow. He states that those who new hegemonic discourse … Black nationalism have benefited are a small group of unproductive may indeed provide the glue in securing the black capitalists with enormous political influence. loyalty of the ANC’s main constituency, but Other black business people almost had no in the process another cherished principle chance.41 of the liberation struggle, – non-racialism – is increasingly under pressure … The demise of This process, which started in the previous political the rainbow ideology that guided the UDF is order, will continue in the new one. Sometimes, it much regretted by coloured, white, and Indian involves forms of pressure and intimidation. Loane former activists, but is hardly problematized by Sharp, an economist, states: my African interviewees.39 Behind closed doors, the Department of Trade “There is an increasing fervour for racial nationalism and Industry (DTI) is secretly strong-arming in the ANC’s policies”, the political scientist Nicola South Africa’s finest companies to adopt new de Jager notes.40 The racial identity politics serves as BEE regulations under the threat of damage a potential unifying discourse among South Africa’s to their reputations. The proposed fines and nine major black ethnic groups. It also serves as a mandatory prison sentences are one thing;

37. 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. 38. Stephen Ellis, External Mission: The ANC in Exile, 1960-1990 (Hurst, London, 2012), pp 214-219. 39. 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. 40. http://mg.co.za/article/2015-11-03-sa-is-in-danger-of-becoming-a-radicalised-society-again. 41. http://www.faz.net/aktuell/wirtschaftspolitik/suedafrika-schwarze-buerger-werden-gezielt-bevorzugt-12911281.html. 22 PART II SAMonitor

damage to a firm’s good name is something else negotiated identities. Many of them also draw entirely. In this hostile milieu, no business dares from cultural repertoires of fervent individualism, to be accused of racism, whatever the facts. ruses and social mobility, based on the specific dynamics of their group and locality.44 Compared But the government now consumes 32% of to some other identities available to citizens, the national income each year. As such, too many South African identity itself has often been a thin, businesses are connected to the government’s fluid and contested national identity for purposes sphere of economic influence to be able to ignore of political mobilization. its directives. Banks, insurers, mobile networks, broadcasters, miners, vehicle manufacturers, Zuma is an ethnic Zulu who also upholds some construction companies, oil refineries, drug Zulu cultural traditions. He has more than twenty producers, transport companies … all of them children and six wives, whom he had married in are tied up with the government.42 traditional weddings. For many years before the ANC came to power in 1994, Nelson Mandela, an International business will periodically encounter ethnic Xhosa, was the leader of the ANC. similar dilemmas. The ANC always stressed its “non-tribalism”. Zulufication in the ANC However, Mbeki expanded the number of Xhosas in his cabinet during his tenure as president. During Zuma’s presidency has clearly reinforced ethnic this time, most members of the ANC executive were politics in the ANC. In the case of South Africa, Xhosas and Zulus speaking Nguni languages, and no single ethnic group dominates numerically in Zuma was the highest-ranking Zulu in the ANC. In the population of 54 million. Zulus constitute the 2006, Archbishop Emeritus Desmond Tutu warned 45 biggest minority, about 22% of the population, about a potential “Nguni-ocracy” in the ANC. with their core historical areas and kingdoms in the eastern KwaZulu-Natal province. The broader As a result of Zuma’s skills as a mobilizer since 1994, population has at least eleven major identity Zulus have come to form the strongest component groups. None of these groups constitute a complete (almost 25%) of the ANC’s increased membership.46 majority, according to South Africa’s Census 2011: At the 2012 ANC conference, the ANC in KwaZulu- Zulus 11.58 million; Xhosas 8.15 million; Northern Natal voted through its own programme to become Sothos 4.6 million; Tswanas 4 million; Afrikaners the national programme and the province took about 2.6 million; English-speaking whites about over half the seats on the ANC executive. Former 2 million; Coloureds who speak Afrikaans about KwaZulu-Natal premier, , currently 3.4 million and English about 1.2 million; Tsongas, holds the key position as ANC treasurer general. Swazis, Vendas and Ndebeles all between 2.2 and KwaZulu-Natal as a province is also receiving more 1.2 million people.43 than its proportional share of major state projects.

All of these groups have distinctive cultures and This Zulu dominance is resented by representatives languages, sometimes core areas of residence of other ethnic groups, resulting in growing rivalry and concentration, and often histories of struggles between often ethnic-based networks. However, against domination by other groups. Each group’s as the British historian R.W. Johnson remarked: members have a spectrum of iterated and

42. http://www.bdlive.co.za/opinion/2015/04/20/why-new-bee-codes-will-pull-the-rug-from-under-business. 43. See Census 2011 at http://www.statssa.gov.za. 44. 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 32-48 (on pp 34-42). 45. 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. 46. Also see William Gumede, “Zuma and Zulu nationalism” (2012) at http://www.pambazuka.net/en/category/ features/85841/print. 23 SAMonitor PART II

the hybrid regime, cadre deployment and selective To many Zulus, supporting Zuma meant “taking patronage have “eaten the state”. In addition, back” the ANC – it was founded by a Zulu, labour union allies have become weaker. Up to John Dube, and Chief Albert Luthuli, also a a third of South Africa’s population lives in areas Zulu, had led the anti-apartheid struggle in where traditional authorities are influential. The the Fifties. The Zulus had patiently put up with political settlements of twenty years ago are now three successive Xhosa ANC leaders – Tambo, superseded by a conscious effort to create new Mandela and Mbeki – and there was a strong 47 deals and coalitions that incorporate potential feeling that “now is our time”. allies like traditional chiefs and urban strongmen.

Zuma used to be an intelligence head of the ANC’s As The Economist noticed on 2 May 2015, guerrilla army. Once in power as president, he has installed those he trusts in key positions of the When King Goodwill Zwelithini, the Zulu security apparatus. In the process, the influence traditional head, made anti-foreigner remarks of Zulu decision-makers in the security cluster has recently that whipped up attacks on black been noticeable. In 2011, these included migrants, South African political leaders were as SAPS chief, as minister of Police, loath to rebuke him (he claimed his words Dr as minister of Intelligence and had been mistranslated). The response was as minister of Justice. In the cabinet of similar when King Goodwill called homosexual 2015, Zulu confidantes of Zuma include Knowledge relationships “rotten” a few years back.49 Malusi Nkanyezi Gigaba as minister of Home Affairs, Nkosinathi Nhleko as minister of Police, Jeff Radebe King Goodwill Zwelithini is one of ten traditional as minister in the Presidency and as kings and one queen among the traditional leaders. minister of State Security.48 He will receive R60 million this year from the state for the upkeep of his household: seven palaces, The chance of future regional and ethnic-based six wives and at least twenty-eight children.50 political responses to Zuma’s privileging of Groups like the Tembu, the Xhosa, the Mpondo KwaZulu-Natal and of Zulus in the ANC will remain and the Pedi also have kings, but they are only paid strong. Some individual ANC supporters are also about R1 million a year. There are more than eight disillusioned by the extent of “tribalism” and hundred senior traditional leaders and more than neopatrimonialism in the current ANC. However, five thousand chiefs in the country who get much these processes now form a key part of the ANC’s smaller salaries from the state.51 positioning and alliances in the new order. In the case of traditional authorities, the ANC Coalitions with traditional and especially Zuma potentially benefit in several ways. Zuma gains access to some of the moral authorities and local strongmen authority of these leaders, while also extending the power of the ANC over them where possible. The effective power of the state bureaucracy He increases the political order’s responsiveness has decreased under the ANC government. The to rural constituencies in order to offset the loss population has expanded by more than 20%, while of support in some urban and middle-class black

47. See “Reaching the turning point”, The Guardian, 27 May 2011; “South Africa’s Zulu king”, The Guardian, 18 January 2010. 48. http://www.biznews.com/undictated/2014/05/jacob-zuma-appoints-new-cabinet-sa-gets-new-finance-minister/. 49. http://www.economist.com/news/middle-east-and-africa/21650166-traditional-rulers-can-cause-much- embarrassment-more-trouble-theyre-worth. 50. http://www.news24.com/Columnists/MaxduPreez/Zwelithini-should-face-the-consequences-of-his- actions-20150421. 51. Zuma attended the recent coronation of the new Xhosa king. http://news.yahoo.com/lion-skins-dancing-xhosa-king- coronation-africa-181027012.html. 24 PART II SAMonitor constituencies. He also strengthens the symbolic He made similar statements in 2004, 2006, 2009, legitimacy of the hybrid regime in areas where the 2012 and 2014.55 state’s actual penetration and especially its actual service delivery may be weak.52 Previously he had said that “only those with ANC membership will go to heaven”.56 In May 2011 he It is still uncertain whether Zuma will also benefit told voters before municipal elections that those materially from his alignment with traditional who turn their backs on the ANC will face the wrath leaders. Parts of South Africa’s communally held rural of the ancestors, a force considered by many citizens land is also the richest in minerals. It was reported to be powerful and actively intervening in daily life. in 2014 that Zuma’s nephew, Inkosi Simpiwe Zuma, had launched a land claim targeting more than 60 I’ve been telling people that if you once belonged farms in Impendle in the KwaZulu-Natal Midlands. to the ANC and you leave, the ancestors of the In March 2015, Zuma acknowledged that his family ANC will turn their backs on you and you’ll have would bring claims without giving details. The ANC continuous bad luck.57 government reopened the claims process in 2014 and Zuma urged traditional leaders to get organized Adam Ashforth, as well as Stephen Ellis and Gerrie before the new expiry date of claims in 2019.53 ter Haar, identify a potential legitimacy gap if many citizens who adhere to Christian or indigenous New prominent sources of symbolic African religious views do not see the state acknowledging and protecting themselves against legitimation the profound threat posed by evil spirits.58

Recourse to both Christian and indigenous African Zuma is able to have recourse to this repertoire and religions, which also enjoy support among urban that of the NDR to align with different constituencies. constituencies and leaders, have been used as In this way, he can also gain access to some of additional sources to legitimize the ANC’s hold on the moral authority of traditional authorities, power. On 5 May 2008, Zuma declared to an ANC increase the political order’s responsiveness to rally in Khayelistha: such constituencies, and strengthen the symbolic legitimacy of the hybrid regime.59 Other discourses God expects us to rule this country are also present, but a discourse of de-Westernization because we are the only organisation now dominates the symbolic domain. which was blessed by pastors when it A symbolic domain of nativism and was formed. It is even blessed in Heaven. violent scapegoat politics That is why we will rule until Jesus comes back. We should not allow anyone South Africa is a young state, just over a hundred years old, with shifting political group identities to govern our city [Cape Town] when we and territorial borders. It is currently experiencing 54 are ruling the country. its fourth political order since 1910. Its current nine

52. http://www.timeslive.co.za/thetimes/2014/01/09/jz-drops-poll-bomb1. 53. http://www.bdlive.co.za/national/2015/03/06/zuma-reveals-family-to-lodge-land-claims; http://www.southafrica. info/services/rights/land-010714.htm#.VXmLiGPALmQ. 54. http://www.iol.co.za/news/politics/anc-to-rule-until-jesus-comes-back-1.398843?ot=inmsa.ArticlePrint PageLayout.ot. 55. http://www.politicsweb.co.za/politicsweb/view/politicsweb/ en/page71639?oid=326899&sn=Detail&pid=71639. 56. http://www.timeslive.co.za/sundaytimes/article895148.ece/God-is-on-the-ANCs-side-Zuma-tells-crowd. 57. http://mg.co.za/article/2011-05-14-zuma-vote-anc-or-face-ancestral-wrath. 58. Stephen Ellis and Gerrie ter Haar, Worlds of Power: Relgious 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. 59. http://www.timeslive.co.za/thetimes/2014/01/09/jz-drops-poll-bomb1. 25 SAMonitor PART II provinces, with their distinctive landscapes and reinforced or responded to some of these demands. dynamics, are often grafted on previous political The ANC’s secretary general, , orders: African and European settler societies, announced on 12 April 2014 that the government Asian and Khoisan structures, the indigenous would restrict small foreign-owned businesses chiefdoms, Afrikaner republics, and Matabele and from being opened in the country’s townships and Zulu empires of more than five hundred years of rural areas, so as to create opportunities for South history. Africans. He added:

The position of different groups in this population is If you go to Soweto corner shops have been currently being recast. The social contract between taken over by foreigners. We must do something the government and the diverse population is about it. If you see all the malls here, who is in shrinking and becoming stratified. In the symbolic those malls? Who owns shops there? Why can’t domain, the influence of a nativist mythology our people pull their resources together and that creates new boundaries of the “nation” is own business opportunities in their backyards?63 quite high, compared to two decades ago.60 The formal democratic institutions, the neopatrimonial In January 2015, the minister of Small networks and the autocratic processes and practices of the hybrid regime are now combined Business Development, , in racially-focused and exclusivist nation-building said that foreign business owners projects. should share their business practices These projects differ from the inclusive non- with locals if they wanted to live and racialism of the Mandela era. They are also trade in South Africa without fear of employed to legitimize government actions and 64 to divert attention from failures in service delivery disturbance or violence. and government performance. In the ANC’s competition for support, they also interact with Amnesty International stated in its report on South and respond to the Afro-radicalism and economic Africa for 2014: nationalism promoted by the Economic Freedom In September, the Supreme Court of Appeal Fighters (EFF) of .61 (SCA) overturned a High Court ruling which had allowed in effect the forced closure of Often these symbolic politics interact with the refugee-operated small businesses by police politics of the belly and the politics of patronage: and municipal authorities under what was nativist mythology is used to legitimize efforts known as Operation Hard Stick. These closures to gain access and break up the socio-economic had been accompanied by ill-treatment, formations of some indigenous and foreign abuses, displacement and destitution. The SCA minority cultural groups. ruled that both formally recognized refugees and asylum-seekers were entitled to apply for Afrobarometer’s surveys show that a vast majority trading licences, particularly where the latter of South African citizens distrusts (black) foreigners, faced long delays in the final determination of wishes to restrict their residence rights and prohibit their application for asylum.65 the eventual acquisition of citizenship.62 The ANC

60. 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. 61. http://africasacountry.com/a-malignant-nativism-threatens-post-apartheid-democracy-in-south-africa/. 62. 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 delvired 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. 63. http://www.worldbulletin.net/news/133623/s-africas-anc-to-restrict-small-foreign-businesses. 64. http://www.thedailyvox.co.za/small-business-minister-wants-spaza-shop-trade-secrets/. 65. https://www.amnesty.org/en/countries/africa/south-africa/report-south-africa/. 26 PART II SAMonitor

During 2014 there were numerous incidents mobs drove over a thousand Somalis, Mozambicans, involving threats and violence against refugees, Zimbabweans and Pakistanis from their homes and asylum-seekers and migrants, with looting or small businesses. The international media published destruction of hundreds of their small businesses a photograph encapsulating the tragedy: a street and homes. In the first four months of the year vendor from Mozambique, Emmanuel Sithole, lay incidents in seven provinces led to the displacement begging in vain for his life in a gutter as four men beat of over 1 600 people. In June, sustained attacks in the him and stabbed him in the heart with a long knife.67 Mamelodi area near Pretoria and the slow response of the police led to the looting or destruction of Pres Zuma and his ANC rely on the Zulu king to stay some seventy-six Somali-owned shops, large- in power in the province of KwaZulu-Natal. They did scale displacements, the death of one refugee and not condemn his comments. Nor did they follow up injuries to ten others. There was continuing concern warnings of xenophobia, despite similar widespread at the failure of the government to protect the life killings in 2008. Prof Loren Landau, director of the and physical integrity of refugees and others in need African Centre for Migration and Society (ACMS) at of international protection. the University of the Witwatersrand, explained the political dynamics involved: On 20 March 2015, Goodwill Zwelithini, the Zulu king, told a cheering audience: “I won’t keep quiet Ward councillors, or some of them, are the when people who have no say are playing with only directly elected officials (the rest appear this country. It is now time for us to have a say”. only on party lists). Although few citizens He added: “We must deal with our own lice. In our know their parliamentarians or local officials, heads let’s take out the ants and leave them in the councillors and those challenging them are sun”. It is not clear what he meant by that. He said familiar and known. With almost no budget or foreigners were all over South Africa and they were legislative authority, they are held responsible making the streets dirty. “We ask that immigrants for problems they have little hope of resolving. must pack their bags and go back where they came Faced with perennial shortfalls of services, from.” dwellings and jobs, local leadership has allowed and abetted the scapegoating and Edward Zuma, the president’s son, supported appropriation of foreign-owned shops, houses Zwelitihini’s appeal.66 These remarks triggered or goods. With new resources to distribute and a a series of xenophobic attacks that spread from demon to blame, they come out winners. While KwaZulu-Natal to Gauteng province. Hundreds of low employment, poor services and political foreigners were injured by mobs wielding machetes, competition do not necessitate violence even in fragmented communities, this trifecta almost bricks and firearms, and at least seven people were 68 killed. In areas of Durban and Johannesburg, jubilant always appears where it occurs.

66. http://www.news24.com/SouthAfrica/News/Zumas-son-wants-foreigners-out-of-the-country-20150331. 67. http://www.theglobeandmail.com/news/world/violent-images-of-street-attack-deepen-crisis-in-south-africa/ article24023417/; http://www.economist.com/news/middle-east-and-africa/21649429-south-africas-poor-are- turning-those-even-more-downtrodden-blood-end-rainbow. 68. http://www.washingtonpost.com/blogs/monkey-cage/wp/2015/05/11/political-rhetoric-and-institutions-fuel- xenophobic-violence-in-south-africa/. 27 SAMonitor PART II

After the xenophobic attacks, sociologists Heribert Kogila Moodley wrote: Adam and Kogila Moodley wrote: Sensitive scholars such as Francis Nyamnjoh Only after two weeks of denial did the have already hinted that the “bizarre nativity government acknowledge the emergency in game of exclusionary violence” could easily response to business repercussions in the rest expand from “outsiders within” to longtime of Africa and the deteriorating image of the insiders, such as Indian South Africans, country abroad. In 2014, at the US-Africa Leaders coloureds and whites. Retribalisation has been Summit, former South African ambassador to relatively successfully contained by the ANC the US Ebrahim Rasool declared South Africa and its ally, the South African Communist Party, “a moral superpower”, able to teach the world in public discourse, but it nevertheless simmers the way Nelson Mandela managed conflict under the surface.71 resolution. In this view, liberated citizens cannot be xenophobic if the image of a glorified The editorial of the Mail and Guardian on 17 April rainbow nation is to be salvaged. Admitting 2015 also noted: racism toward fellow Africans would deprive the ruling party of the moral high ground … As the It would not take much for the groundswell ruling elite enriches itself by looting the state, against foreigners to be translated into violence the forgotten slum-dwellers claim their share against the Indian community, particularly by collecting the crumbs from the vulnerable in KwaZulu-Natal, where there is a long and amakwerekwere (foreigners). The derogatory dishonourable tradition of sectarian hatred. label this time included not only other Africans, There is now an attempt to paint South mainly Somalis, but Pakistani and Bangladeshi Africans of Indian origin as “co-conspirators”, informal traders as well. 69 by suggesting that foreigners are using their warehouses or that “they are working together Since the widespread unrest, there have been against us, the Zulu majority”. several incidents of smaller groups attacking foreigners from Ethiopia and South Asia, looting Even Zuma turned to exclusionary identity politics hundreds of shops, displacing hundreds of to build his support base. “You must remember them, and killing some.70 After twenty years of that a man called Jan van Riebeeck arrived here on underperforming one-party dominant rule, there 6 April 1652, and that was the start of the trouble is an undercurrent of heated rhetoric and volatile in this country,” Zuma told a fundraising dinner in scapegoat politics in South Africa. Foreign Africans February 2015. “What followed were numerous are excluded, marginalized or not recognized in the struggles and wars and deaths and the seizure of nativist discourse. So are indigenous Western and land and the deprivation of the indigenous peoples’ Asian Africans. political and economic power.” Van Riebeeck’s arrival “disrupted South Africa’s social cohesion, A shrinking social contract and repressed people and caused wars”, he said. Zuma later claimed that the new settlers had stolen the indigenous cultural groups land of other resident groups.

The current political order consists of several Several Afrikaner-led organizations saw Zuma’s numerical minority groups. After the xenophobic remarks on history as a delegitimization of the attacks of 2015, sociologists Heribert Adam and position of the Afrikaners, also because of his

69. http://mg.co.za/article/2015-05-06-violence-sets-sa-xenophobia-apart. 70. http://www.voanews.com/content/six-ethiopians-killed-in-south-africa/3044175.html; http://www.dailymaverick. co.za/article/2015-10-29-xenophobia-in-grahamstown-we-are-not-leaving/#.VkY4ZpqBfmS; http://www.dispatchlive. co.za/news/foreigners-told-to-vacate-safe-house/. 71. http://mg.co.za/article/2015-05-06-violence-sets-sa-xenophobia-apart. 28 PART II SAMonitor silence about their contributions. Their ancestors, Zuma’s remarks also emphasized that the as in the case of America, came from European consensus of the various group elites in 1994 had countries in the seventeenth century, settled in broken down by 2015. A new political order with a region with several competing political orders, a new exclusionary symbolic domain was being created Western republics, and saw themselves as established. Sometimes, the institution of a new a people rooted in Africa.72 symbolic domain happened through grassroots action with intimidatory or violent dimensions, like Leaders of the organizations took note of a feature the actions against statutes of Afrikaner, English already noted by Raymond Suttner during the and Asian historical figures, including the Indian xenophobic attacks: anti-imperialist politician Mahatma Gandhi.76 Sometimes, they took the form of the deadly One of the striking features of current xenophobic attacks. South African politics is the callousness Mostly, the new domain was pursued through speech acts and bureaucratic actions selectively that reigns, that harmful acts are aimed at those communities where most people perpetrated against some people while supported political opposition parties and actors. others remain unmoved.73 There has been a focused effort, for example, to weaken the position of Afrikaans and Afrikaans Their criticism of Zuma’s remarks also reflected a speakers at certain schools and universities, and to consciousness of the speech acts that had preceded increase the ANC government’s control over these the anti-Tutsi genocide in Rwanda in 1994, ironically institutions and their discourses. the same year Mandela had become president of 74 This campaign has been noticeable, since many of South Africa. these schools and universities were working well, while the government did not really undertake a Zuma’s remarks, like that of the populist political concerted effort to rather improve the majority of opposition leader Julius Malema, reflected new other less functional schools and universities in the and selective claims for belonging and entitlement country where education in general remains in crisis. versus exclusion under the rubric of “autochthony”. As indicated in the World Economic Forum’s Global Given the history and pattern of socio-economic Competiveness Report 2014-2015, South Africa’s formations in South Africa, they increased the overall position regarding the quality of education risk of a “sons of the soil” contestation between had slipped from a low 119th position in 2009 to one citizens, similar to such politics in some parts of of 140th out of 144 countries by 2015.77 Africa and Asia.75

72. See Hermann Giliomee, The Afrikaners: Biography of a People (Tafelberg, Cape Town, 2003). 73. http://www.dailymaverick.co.za/article/2015-05-20-op-ed-government-tries-to-pull-wool-over-our-eyes-on- xenophobia/#.VXPyOGPGPmT. 74. http://www.politicsweb.co.za/opinion/the-dangers-of-demonisation; http://www.theguardian.com/world/2015/ feb/19/jacob-zuma-investigation-hate-speech. 75. 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. 76. http://www.bbc.com/news/world-africa-32287972; http://www.news24.com/SouthAfrica/News/Paul-Kruger- statue-in-Pretoria-vandalised-again-20150411; http://www.iol.co.za/news/politics/monument-vandalism- accelerated-1.1843782. 77. Klaus Schwab and Xavier Sala-i-Martin (eds), “The Global Competitiveness Report, 2014-2015”, World Economic Forum 2015, p 341. 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. 29 SAMonitor PART II

Not only Asian and Afrikaner groups have been population is also becoming stratified: citizens affected by the new identity politics. Sentiments from certain groups are now clearly privileged and actions hostile to South Africa’s Jewish by the government, while it marginalizes and community have emerged too.78 On 27 April 2015, delegitimizes the position of others. It is possible the political economist Ismail Lagardien wrote on that the new symbolic domain could eventually the ANC’s return to ethnic and racial politics: also stratify black ethnic groups and result in new claims-making and contestation. People from the In consultations over the past year or so, and Venda and Tsonga minority cultures have already visits to the province, I have found that there complained about being harassed or attacked by has been a significant anti-Indian sentiment, Nguni-speakers.80 on the back of calls for the largest indigenous community, the Zulus, to take greater control of International business and NGOs would ignore the KwaZulu-Natal. In the provincial bureaucracy, stratified, ethnicized and racialized understandings “coloured” people are stripped of authority, of citizenship, rights and entitlements at their and increasingly find themselves marginalised; peril. Linked to the hybrid regime, they reflect if not formally and physically, they are ignored a new symbolic and political domain that is far and their work is shoved aside. removed from that expressed in the formal, liberal, democratic Constitution.81 Now turn to the Western Cape, where “coloured” workers – professionals like nurses A rise in self-help initiatives and and librarians – are losing their jobs because “there are too many coloureds” in the province. authority migration The official policy is that the province should reflect that “national” population/racial The neopatrimonial factions and networks in the demographics. Turn to the capital, where the hybrid regime focus on gaining exclusive access to central government has essentially purged, resources and conspicuous consumption, rather by various means of coercion and consent, than on ensuring investment and non-partisan all “non-Africans” (mainly whites) from the service delivery. Current state capabilities vary: bureaucracy, and effectively denuded the the taxation structures of the Receiver of Revenue state of skills, experience and institutional are highly-organized, while institutions like the memory developed over decades. It is in central parastatal Post Office, the national electricity government, too, where the state-party nexus supplier ESKOM, or the Department of Basic will insist on getting the population/racial Education often contain large dysfunctional parts. demographics right. Of secondary consideration There is a decline in or a limit to state capabilities are matters of efficacy, capability and efficiency in some areas including security, healthcare, of service delivery. How far are we from loading education as well as, lately, energy and water. people into trains, and shipping them off to locales where they meet racial criteria of the Partly in response, there already is a limited but state-party nexus?79 robust evolution of capacity within communities and subsystems of the state. Sometimes, these The social contract between the government and capacities are linked to organizations located in the population is shrinking, and the identified specific local governments, resulting also in some

78. 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. 79. http://www.dailymaverick.co.za/opinionista/2015-04-27-the-re-racialising-and-tribalisation-of-politics-where-will- we-end-up/#.VXmAcmPALmQ. 80. http://www.rdm.co.za/politics/2015/04/24/ethnic-cleansing-sure-to-follow-xenophobia. 81. http://www.gov.za/documents/constitution/constitution-republic-south-africa-1996-1. 30 PART II SAMonitor authority migration to such actors. For example, school based on a broader philosophy of lifelong many of the local services of the Western Cape learning, community radio stations, a social welfare province, in general, currently controlled by the service and campaigns where members help local Democratic Alliance (DA), function better than most municipalities to provide better services.86 ANC-run municipalities in the Limpopo province. Cities like Cape Town exhibit an own foreign policy Sometimes, the non-state capacities are linked to and governance.82 actors in the private sector or certain rural areas, suburban neighbourhoods or towns. This trend is As has been mentioned above, sometimes these visible in the plethora of private security companies. capacities are linked to organizations located in An estimated 445 000 security guards are employed communities. Also in this case, authority migration by the industry, which far outnumber the country’s occurs. Community courts and policing occur in 270 000 policemen. In addition, home schooling and several richer and poorer pro-ANC townships, also private education initiatives, healthcare services, in the Western Cape.83 Among Cape Muslims, own and energy production and distribution services institutions and even neighbourhood watches have expanded considerably in past years. have played an important role since the 1990s. As discussed above, as Pres Zuma’s position has Given the empowerment of individuals by weakened and some black middle-class voters have communication and information technology,87 considered not voting for the ANC, he has reinforced as well as trends towards prosumers in the the position of traditional leaders. They often renewable energy sectors of other countries,88 remain the gatekeepers to numerically strong local these trends are likely to continue. They will also constituencies. provide opportunities for considerable innovation by business, but also by other organizations, The predominantly Afrikaner-led Solidarity Move­ communities, neighbourhoods and cities. ment has mobilized almost 300 000 members, especially in northern areas of South Africa, Key dimensions of the new symbolic around a trade union. As a movement, it includes 18 organizations initiating self-help initiatives. and political order These initiatives sometimes complement and at other times substitute state structures. The By 2015, the consensus between different elites of movement positions itself as a centre-right the 1990s has disappeared. The liberal democratic Christian democratic organization favouring forms constitutional order, built on the consensus of community federalism.84 between the ANC of Nelson Mandela, business and the National Party of F.W. de Klerk, has been The movement’s member organizations include one replaced by a new political and symbolic order. of the fastest-growing civil rights groups in South Remnants of these older discourses remain, Africa – AfriForum, founded in 2006, has reached and some dynamics of the present were already a membership of more than 155 000 by the end present in the previous order of the Mandela and of 2015.85 It conducts court cases on constitutional, Mbeki presidencies. However, nine key dimensions cultural and municipal issues of interest to its have reached a critical mass and combined to form members or citizens in general.The movement has a new political order under Jacob Zuma. also created a technical training facility, a business

82. http://www.bdlive.co.za/opinion/columnists/2015/06/10/cape-town-a-different-universe. 83. 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. 84. https://solidariteit.co.za/en/. 85. https://www.afriforum.co.za/home/. 86. http://akademia.ac.za/; https://helpendehand.co.za/; http://www.sol-tech.co.za/. 87. On the global rise in individual empowerment, see National Intelligence Council, Global Trends 2030: Alternative Worlds (National Intelligence Council, Washington, D.C., 2012). 88. http://www.sciencedirect.com/science/article/pii/S0301421512003473. 31 SAMonitor PART II

The first key dimension of the new order is shift The fourth key dimension is that the new political to a hybrid regime under Jacob Zuma’s ANC. The order also rests on a shrinking social contract. locus of politics has shifted from accountable Both the scope and the nature of the relationship democratic institutions to a field of power in which between the governing party and the diverse weak democratic institutions and non-democratic population have changed. This relationship now institutions interact. includes a narrower re-racialized politics and the authoritarian and ethnic dynamics in the ANC. It is a The second key dimension is an oligopoly of violence stratified and exclusivist project of nation-building, that has emerged instead of the state’s monopoly privileging some groups of citizens above others. of violence. The ANC government does not appear to consider a restoration of the security of citizens Mutual obligations between some groups and those and businesses as a state priority. Elections still in power, as well as patron-client relationships, occur. However, intimidation, threats of violence, now dominate the understanding of rights and rehearsals for violence, violent protests, and even entitlements. Among key ANC constituencies and political assassinations form part of the rules of leaders, this new social contract supersedes the the game and the incentive systems in dealing with understanding of the South African state as rooted political claims, counter-claims and contestation. in citizenship, impartial service delivery, in the Constitution, and in loyalty to other citizens. The third key feature is a new more volatile and fragmented basis of the state’s authority and The fifth key feature is a limited responsiveness power. The bureaucracy’s capacity remains limited and a non-pluralist approach as far as the claims and becomes less efficient in service delivery, while or needs of political opposition groups and the economy stagnates and selective patronage some smaller ethnic groups are concerned. This politics and the population expand simultaneously. relationship with the diverse population differs In an effort to maintain or regain some control, the from the inclusive non-racialism of the Mandela ANC government and its factions are reshaping era. It also serves to legitimize government actions the political order around different local deals, and to divert attention from failures in service relationships and settlements. At present, the delivery and government performance by means active realignment with traditional authorities is of scapegoat politics. especially noticeable. The sixth key dimension is the promotion of de- Currently or in future, these alignments may also Westernization in the symbolic domain and also involve the political rules of the game. Nativist identity discourses and new combinations of Christianity ... gang leaders in townships and and indigenous African religion are increasingly squatter settlements, vigilante- prominent in the domestic symbolic domain. type organisations, ethnically-based However, as is visible in the xenophobic tensions and attacks, and ANC responses to it since 2008, protection rackets, millenarian religious the nativist discourse excludes not only indigenous movements, transnational networks Western and Asian Africans, but also foreign of extended family relations, organised Africans and Asians. crime or new forms of tribalism ... They The seventh key dimension of the new political order is a different conception of property rights have the capacity to exert violence on a and the conditions of wealth. The selective large scale against outsiders and the economic empowerment of politically-connected capacity to control violence within their actors and the politics of the belly increasingly 89 aim at gaining access to and control over the respective strongholds. socio-economic formations of some indigenous

89. Volker Boege, Anne Brown, Kevin Clements and Anna Nolan, On Hybrid Political Orders and Emerging States (Berghof Research Centre, Berghof Handbook Dialogue 8, 2008). 32 PART II SAMonitor and foreign minority cultural groups. The nativist as powerful or effective, authority migration and symbolic discourse interacts with this process and the substitution of state services or service delivery sometimes serves as its legitimization.90 Both greed failures will occur in time. and grievance interact. These dynamics of capacity building and authority In the competition for support from similar migration will influence the incentives and constituencies, this ANC approach also interacts preferences of citizens and communities. They with and responds to the Afro-radicalism and already result in a situation where diverse and economic nationalism promoted by the EFF party competing authority structures, sets of rules, and of Julius Malema.91 The ANC government presents claims to power co-exist, overlap, and intertwine.92 its approach as the sole approach to African Thus, resilient and fragile processes of state- liberation in South Africa, excluding or silencing reformation co-exist in the new order.93 So does the other more inclusive, democratic, federal and social differentiated performance of core functions like enterprise-based models of African liberation. Its security, but also of the expected state functions, shrinking social contract reinforces the limited and with different expectations in different areas and partisan protection of citizens whose contributions communities of South Africa. would be needed for a successful model of African liberation. It also legitimizes scapegoat politics by government and non-government actors. The new political order already constitutes an asymmetric modular The eighth key dimension, also linked to Zuma’s state. Organizations and institutions search for reliable allies, is a foreign policy clearly privileging Russia and China, and less favourable that do not form part of the central to Western powers. In addition, an interventionist state fulfil several state functions and developmental state and ANC-aligned business actors are much more evident in economic diplomacy in different ways in some areas and various forms of protectionism. Domestic or communities. Although the ANC short-term political priorities are prioritized above Western foreign direct investment. The current government theoretically has the political order also enjoys a much more critical capacity to fulfil at least some of these reception in Western media than for example the functions, it accepts this modular state previous order under the Mandela presidency. The ANC’s plans to withdraw from the International as part of its governance model. Criminal Court has reinforced this shift among media and policy-makers. In some areas of South Africa, the dynamics of self- help initiatives and authority migration may in time The ninth key feature is the limited but robust evolve into a mediated state. In these zones, “rule evolution of capacity and self-help initiatives within of the intermediaries” will substitute the rule of cities, communities, and the private sector. This the central state. The government will accept this feature will involve authority migration and shape situation and try to align with these actors, not 94 the new political order. Where actors are perceived voluntary, but based on necessity.

90. This feature is explored in more depth in Part VII on The threat to property and investor rights. 91. http://africasacountry.com/a-malignant-nativism-threatens-post-apartheid-democracy-in-south-africa/. 92. 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. 93. Alan Whaites, States in Development: Understanding State-building (Department for International Development, London, 2008), p 14. 94. 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. 33 SAMonitor PART III

From a flawed democracy to a hybrid regime

Roger Southall compares the record of the liberation movements of Southern Africa after coming to power in Zimbabwe, Namibia and South Africa. He concludes that even with the difficult legacies they inherited, their performance in power has been deeply disappointing. While they will survive organizationally, Southall states that their essence as progressive forces is dying.95

Samuel Issacharoff, Reiss professor of Constitutional Law at the New York University School of Law, also stated in 2013:

As the founding generation moved off the historic stage, however, and as less-broad- minded functionaries took the reins of power, the heroic ANC emerged as the head of an increasingly one-party state, with all the attendant capacity for antidemocratic abuse. South African democracy entered a period of what is termed “dominant party” democracy, Part III a term that may simply connote the imminent collapse of real democratic contestation.96

In 1994, high hopes existed internationally for The shift the new multiparty political order, with Nelson Mandela as its first president and Thabo Mbeki and F.W. de Klerk as its vice-presidents. By 2006, The Economist’s Democracy Index classified to a hybrid South Africa under Pres Thabo Mbeki as a flawed democracy, due to its political culture and the functioning of government.97 By 2014, after six years of rule by Pres Jacob Zuma and twenty years of ANC rule, the one-party-dominant state had regime 98 transformed into a hybrid regime.

95. See Roger Southall, Liberation Movements in Power: Party and State in Southern Africa (James Currey, Suffolk, 2013). 96. 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. 97. Economist, The world in 2007: Democracy Index 2006, p 3. The annual index looks at factors like electoral process and pluralism, civil liberties, free and fair competitive elections, the functioning of the government, and political culture. 98. Also see Oda van Cranenburgh, “Democracy promotion in Africa: the institutional context”, Democratization, 18(2), 2011, pp 443-461. 34 PART III SAMonitor

In political science, a political regime is the the daily lives of most citizens, these dynamics particular set of institutions that govern a country, represent a distinctive political order: a hybrid constitute the incentive systems and establish regime. The political incentive systems, the rules of both the formal and informal rules of a political the game, and the field of power differ from that of game.99 A hybrid regime can be many variants of democracies. institutional arrangements, due to the presence of both democratic and non-democratic processes Three drivers will reinforce the dynamics of a and institutions. hybrid regime and democratic decline in the next few years. The first driver is intensified factional competition for positions and access to state In hybrid regimes, the locus of political resources. The resources are scarcer due to years power is not the legislature and of unproductive and profligate spending, pervasive elections, and democratic checks and self-enrichment and patronage politics. In addition, the local elections in 2016 and the succession after balances on the executive are weak. Pres Zuma’s second term are approaching, and The locus of politics shifts from politicians are positioning themselves. accountable democratic institutions The second driver is the increased securitization to a field of power in which weak of politics: local protests increasingly form part of intra-ANC struggles and local opposition politics, democratic institutions and non- which increases the paranoia among incumbent democratic institutions interact. New ANC politicians at all levels. It also continuously draws in the security cluster and politicized top rules of the game and incentive systems of the security forces, which are committed to dominate. propping up Zuma and his dominant faction in the ANC. The institutions that could restrain the In the case of the ANC, the following non- executive are weaker than in 1994. democratic dynamics are active: the non-pluralist political culture of the ANC and the capture of The third driver is the economy, which is struggling. state institutions by cadre deployment; the ruling In previous years, the strength of the economy and party of a one-party-dominant state becoming built-up infrastructure provided a cushion for the the gatekeeper to power; a weaker separation ANC not to face the consequences of neopatrimonial of powers; personalised and unaccountable policies. However, the neopatrimonial politics of presidentialism; weak or neutralised checks on the the elites has “devoured” much of the state. executive and the uneven implementation of the rule of law to the president; selective patronage The extra reserves that would be needed to change and corruption; and the increased securitization of again, this time into a truly democratic regime, are politics. exhausted. According to academics like Prof Jannie Rossouw, the state may be heading for a fiscal cliff, Electoral politics still matter in South Africa, which would entail a systemic crisis.100 Even if this but they do so in a subservient role to the new is to be avoided through an unexpected windfall or institutional arrangement of the order that safety rope, more intense factional infighting about provides the electoral opportunities. Away from the scarcer spoils is likely to prevail.

99. 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. 100. http://www.politicsweb.co.za/politicsweb/view/politicsweb/en/page71619?oid= 780852&sn=Detail&pid=71616. Also see Fanie Joubert and Jannie Rossouw, “Lewenstandaard: ’n ekonomiese perspektief op lewenstandaard in Suid-Afrika”, Tydskrif vir Geesteswetenskappe, 53(1), Maart 2013, pp 89-108. 35 SAMonitor PART III

ANC intolerance of dissenting views dominant pattern of the ANC in government. The ANC’s approach was one of centralised decision- making, unquestioned loyalty, sycophancy, and no The Tripartite Alliance comprising the ANC, the much public criticism, as opposed to the open debate of smaller South African Communist Party (SACP) and a dynamic democracy.102 the trade union federation COSATU have won in five general elections in South Africa between 1994 The ANC has repeatedly recommitted itself to a and 2014. While the ANC participated in elections, National Democratic Revolution (NDR) in South its leadership’s rootedness in an armed struggle Africa. This has been the case at its national still permeated its political culture. conferences at Mafikeng (1997), Stellenbosch (2002), Polokwane (2007) and Mangaung (2012). As The Economist concludes in its review of the So has Pres Zuma.103 At the Fourth National General study of the ANC in exile by the prominent scholar Council of the party in Midrand in October 2015, in African Studies, Prof Stephen Ellis, Zuma repeated that the ANC and the “vanguard” SACP were partners facing in the “same direction” The real message of Stephen Ellis’ history of towards a “socialist revolution” and a “communist the African National Congress (ANC) in exile society”. Consistent with this statement, was the – painfully and palpably obvious between the council’s adoption of a declaration reaffirming the lines – is how the conspiratorial past affects party’s commitment to a NDR.104 the ruling party to the present day. It makes uncomfortable reading, for it goes some way Anthea Jeffery of the South African Institute of Race towards explaining why President Jacob Zuma, Relations (SAIRR), a liberal think tank, is one of the a former head of the ANC’s intelligence service foremost experts on the NDR. According to her, as in exile, and his comrades now running South a result of the NDR framework, the ANC sees itself Africa find it so hard to embrace the notion that as a national liberation movement responsible for a diversity of opinion and tolerance of dissent implementing the NDR and uniquely entitled to must be at the heart of any functioning, decent rule.105 This approach is clear in ANC discourse.106 democracy.101 It often marginalizes or denies the contributions of the multiracial United Democratic Front (UDF),107 the William Gumede, Oppenheimer fellow at St predominantly Zulu Inkatha Freedom Party (IFP),108 Antony’s College, Oxford, and the biographer of liberals and reformists from all ethnic groups,109 and former Pres Thabo Mbeki and Archbishop Emeritus the Black Consciousness Movement110 to the struggle Desmond Tutu, already noticed during Mbeki’s rule against different dimensions of minority rule. that the ANC’s political style in exile has become the

101. 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. 102. William Mervin Gumede, Thabo Mbeki and the Battle for the Soul of the ANC (Zebra Press, Cape Town, 2005), pp 292-301. 103. http://politicsweb.co.za/politicsweb/view/politicsweb/en/page71654?oid=365935&sn=Detail& pid=71654. 104. http://www.bdlive.co.za/opinion/columnists/2015/10/19/wrong-to-ignore-implications-of-ancs-revolutionary-ideology. 105. http://www.sairr.org.za/sairr-today-1/research-and-policy-brief-the-national-democratic-revolution-ndr-its-origins- and-implications-31st-may-2012. 106. http://www.politicsweb.co.za/politicsweb/view/politicsweb/en/page72308?oid= 150911&sn=Marketingweb%20detail. 107. Ineke van Kessel, “Beyond Our Wildest Dreams”: The United Democratic Front and the Transformation of South Africa (University Press of Virginia, Charlottesville, 2000). 108. 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). 109. 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). 110. Thomas G. Karis and Gail M. Gerhart, From Protest to Challenge: Nadir and Resurgence, 1964-1979 Volume 5: 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). 36 PART III SAMonitor

A political scientist at the University of Stellenbosch changed as the balance of power shifts in favour in South Africa, Nicola de Jager writes: of the ANC. Various constitutional provisions have in practice simply been disregarded. These include If you are critical of the ANC-led government or Parliament’s duty to hold the executive to account, its officials then you will be branded as disloyal the need for a new electoral system after 1999, and to South Africa and the future of South Africa ... the prohibition of cadre deployment. Consequently, there is little room for the voices of opposition parties, since they are portrayed as The NDR also means that the ANC has no principled “forces opposed to transformation”. Opposition commitment to key constitutional safeguards, is further constrained by the very real threat of including press freedom, an independent judiciary being branded as disloyal to South Africa if one and property rights.114 After several years, this is critical of the ANC-led government.111 political culture and approach have transformed the multiparty democracy into a hybrid regime. This reflects the historical institutional dynamics The key message of Pres Zuma’s second inaugural of the party. The Dutch historian Ineke van Kessel address on 27 June 2014, was that during the states: next five years his government will focus on implementing the NDR, consisting of “radical socio- As in the 1980s, in my interviews over 2006- economic transformation policies and programmes 2008 I often encountered a profound distrust over the next five years”.115 in pluralism. ANC officials and representatives often do not see a distinction between party and state and perceive the ANC as the sole ANC politics “eats the state” legitimate locus of power. This legitimacy is derived from its past as the liberation The ANC is already widely in control of the state movement that defeated apartheid ... ANC institutions, after a deliberate policy of cadre politicians in Sekhukhuneland tend to view deployment in all centres of power. The party has opposition as illegitimate. It is alright to have captured state institutions, which have on many the Democratic Alliance in Cape Town, which is levels become partisan, rather than the impartial perceived as “a thing for whites”, in spite of the bureaucratic organizations of a democracy. DA’s substantial Coloured support. However, in Patrimonial and legal-bureaucratic elements now one’s own district, municipality or constituency, co-exist in a neopatrimonial political system.116 rival political parties such as the PAC and Through its control thereof, the ANC is a source AZAPO ought to be silenced, side-lined or even of jobs and careers. The ANC also mobilises and “crushed”. The distinct historical traditions in uses state resources, as well as access to business different parts of South Africa have produced opportunities. As a result, it remains the best- different understandings of the concept of funded political party and can counter electoral democracy.112 initiatives by opposition parties.

The ANC, as Jeffery identifies, does not regard itself to A hybrid regime also constitutes a different way be bound by the Constitution of 1996.113 It considers of elite management. The ANC can use its capture the Constitution to be a tactical compromise to be of state institutions and state-based patronage to

111. http://www.kas.de/wf/doc/kas_10560-1522-2-30.pdf?070328103113, pp 15, 25. 112. 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. 113. See the text at http://www.justice.gov.za/legislation/constitution/constitution.htm. 114. http://www.sairr.org.za/sairr-today-1/research-and-policy-brief-the-national-democratic-revolution-ndr-its-origins- and-implications-31st-may-2012. 115. http://www.sanews.gov.za/south-africa/state-nation-address-president-jacob-zuma. 116. 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. 37 SAMonitor PART III reward allies and punish opponents. It can also to pursue business interests through the state.120 reinforce intra-elite unity, and contain potential The worsening corruption in South Africa is also defectors that may form viable opposition groups.117 reflected in its Transparency International ranking, which dropped from number 36 in 2002 to number One-party-dominance, instrumental individual 69 in 2012.121 In 2014, it dropped even further to patron-client relations and more socially-based position 67.122 norms and practices of patronage permeate the captured state. They reproduce uncertainty about the role and behaviour of state agents.118 The ANC used political power to gain Neopatrimonial political dynamics also play a economic clout, which its patrons and major role in Russia, the Balkans and several Asian networks converted into more political and Latin-American states. However, particular African and South African historical drivers shape power. That power was used to gain neopatrimonial politics in the ANC’s hybrid regime. even more clout in the market. According to Tom Lodge, the ANC historian and political scientist, neopatrimonial practices have a It is well-resourced and ensures that it stays long history within the ANC. They were restricted that way, if necessary through leveraging during its years in exile and began to resurface state resources and the movement acting as a once the armed struggle was over. The party’s business operative, often dressed in patriotism historical ties to criminal networks, pressures and empowerment. The ANC was the best- arising from the transition to majority rule, and resourced party in South Africa. It seamlessly contemporary electoral politics also played a leveraged state power for financial deals – with role. Neopatrimonialism also reflected broader the state and by the ANC benefactors. The tendencies within South African political and ANC’s Chancellor House business operations, economic life.119 largely veiled from public scrutiny, dealt in mega-scoring business deals with the state. Susan Booysen, a political scientist at the Chancellor House would help guarantee the University of the Witwatersrand, concludes that ANC the resources to counter opposition the ANC and central government have multiple advances, including electoral initiatives.123 plans to end corruption and mismanagement. They frequently issue statements in this regard A recent example emerged in September 2015. and work on monitoring activities and redesigning Hitachi Limited had to pay $19 million to settle state institutions. However, she also concludes charges by the US Securities and Exchange that the ANC-in-government is the custodian Commission (SEC) for violation of the Foreign of high levels of visible mismanagement and Corrupt Practices Act in relation to its Eskom exploitation of state resources for personal benefit. contracts in South Africa. Chancellor House, set Activities in the “dubious but legal” category are up to raise funds for the ANC, had a 25% stake in tolerated and emulated. There is little hesitation Hitachi’s South African subsidiary.

117. 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. 118. For a good overview, see Jean-Francois Bayart, The State in Africa. The politics of the belly (Longman, London, 1993). 119. Tom Lodge, “Neo-patrimonial politics in the ANC”, African Affairs, 450, 2014, pp 1-23. 120. 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. 121. “Stagnation in SA”,SWP-Aktuell , 29 April 2014, p 2. 122. http://www.iol.co.za/business/news/sa-slips-down-corruption-index-1.1616304#.VGwZdpUcTIU. 123. 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. 38 PART III SAMonitor

1991, but since the end of apartheid it has gone The SEC statement states that the arrangement back up to almost 20%. between Hitachi and Chancellor House gave the front company (Chancellor House) and the Davis estimated that the country could probably ANC the ability to share in the profits from any raise another R3 billion on estate duty, base power station contracts that Hitachi secured … erosion and profit shifting (BEPS) and undisclosed Through a separate, undisclosed arrangement, assets held offshore. He said that there is no reason Hitachi paid the front company an additional $1 why, once a certain limit is reached, capital gains million in “success fees” that were inaccurately tax (CGT) could not be increased. He added: booked as consulting fees without appropriate documentation.124 And there is no reason why corporates should not pay a 100% tax on capital Pressures for higher taxes gains as they do in Australia. And Many of the 6.17 million taxpayers paying an so there is probably another R7 or R8 estimated 99% of personal tax in South Africa voted billion in the system.125 for opposition parties or abstained from voting. Still, the ANC also used their money to rebuild an uneven electoral playing field in the hybrid regime. Intense factional competition

In November 2015, Judge Dennis Davis, chair of Especially since about 2011, the ANC has the Davis Tax Committee, stated that the greater increasingly had to rely on its control of the level of corruption in South Africa, the less tax government and state institutions for support. This integrity the country would have and the greater the was due to the combined effect of the so-called possibility of a tax revolt. His observation followed liberation dividend becoming thin, compared to shortly after Finance minister in his the lack of service delivery, more internal factional budget policy speech lowered his economic growth competition for power and positions, as well as forecast for 2015 to just 1.5% from 2% in February. many new young voters becoming disgruntled and This forecast signalled a challenging road ahead for supporting opposition parties. tax collection. As Booysen notes: The public sector wage increases at 10.1% was The greatest fragility, sabotaging the re­ge- significantly higher than the inflation figure of n­eration of ANC power, was in the interface of roughly 6%. Davis said a country in South Africa’s long-standing community observations of lack parlous economic position could not afford to of accountability that combined with pervasive continuously award wage increases of 10.1%. This evidence of corruption.126 would result in a funding shortfall for universities, schools and other capital infrastructure. Opportunism, careerism and pre-occupation with movement position and power – for what it Figures produced by Prof Murray Leibbrandt of can leverage in terms of state power – dominate the University of Cape Town showed that when many ANC operations. Talk about the need for apartheid began in 1948, the top 1% of the South containment was far more widespread than African population received about 22% of income, actual action to eliminate it. Action can stimulate compared to about 9% in France and 11% in the reaction and trigger revenge, which leaders US. By 1975 the share of South Africa’s top 1% had aiming at elected office want to avoid at all costs. dropped to about 10% and remained there until

124. http://www.sec.gov/news/pressrelease/2015-212.html. 125. http://today.moneyweb.co.za/article?id=528668&acid=Z254vWXulCUeZeuwhd4cWQ% 3D%3D&adid=lfe50q69JZk8 WkHj2%2BXORA%3D%3D&date=2015-11-06#.VkRfEJqBfmR. 126. Susan Booysen, The African National Congress and the Regeneration of Political Power, 1994-2011 (Wits University Press, Johannesburg, 2011), p 13; Conference, One Hundred Years of the ANC: Debating Liberation Histories and Democracy Today, 20-24 September 2011 at http://www.sahistory.org.za. 39 SAMonitor PART III

Intra-ANC silences and “diplomacy” – whether has two core elements: the distribution of on colleagues’ extravagances in employing state the spoils of power, such as control over resources, being pre-occupied with lucrative developmental project jobs wielded by ANC business operations while in fulltime ANC and/ councillors, and the phenomenon of crony or government employment – were often due to capitalism, where closeness to the ANC provides internal ANC positioning for future leadership … access to market opportunities and tenders.

Corruption, insufficient capacity and self- In both cases that makes those who guard beneficiation over service frequently impeded the gates, whether to government money or the ANC’s rise to the achievement of full state to those in power, important – and makes the power. Organisationally the ANC was a giant on contest for the position fierce. “This allows us to porous legs, courtesy of a plethora of internal understand the factional politics,” he said. “The contests for position, privilege and influence struggle for who controls the gates is extremely over state resources, whether for personal or intense.” 129 community gains.127 Former Pres Thabo Mbeki has criticized Zuma, but Alexander Beresford, a specialist in African politics acknowledged that self-enriching ANC cadres were at the University of Leeds School of Politics and already prominent during his own term in office.130 International Studies, talked to former cabinet Former Pres Kgalema Motlanthe has stated that ministers of the Nelson Mandela and Thabo Mbeki the ANC’s internal democracy is impaired, and that administrations, and current members of the the ANC is currently made up mostly of members party’s National Executive Committee (NEC).128 and leaders devoid of the kind of political ability and consciousness required to maintain a united Beresford’s paper points to what he prefers and non-racial society.131 to call “gatekeeper politics”. This is something towards which he says the ANC has been Pres Zuma no longer makes an effort to disguise leaning since the 1950s, but which started to his priorities. He indicated at an ANC conference in assume its current proportions when the party Durban on 7 November 2015: took power in 1994, and is “exaggerated” in the Zuma regime. I argued one time with someone who said the country comes first and I said as much as At branch level, where it is widely talked about, I understand that I think my organisation, the he says the party is sometimes seen as “some ANC, comes first. Because those people, if they sort of sordid pyramid scheme”. “It depends are not part of the ANC and there was no ANC on the extent to which it [the ANC] can contain they could be misled. They could be under ... errant gatekeepers,” said Beresford. “If they can oppression forever. 132 contain the internal politics, it can stand up.”

The interplay between money and power is complex, with each feeding the other, but Beresford told UJ students that ANC patronage

127. Susan Booysen, The African National Congress and the Regeneration of Political Power, 1994-2011 (Wits University Press, Johannesburg, 2011), p 13; Conference, One Hundred Years of the ANC: Debating Liberation Histories and Democracy Today, 20-24 September 2011 at http://www.sahistory.org.za. 128. http://mg.co.za/article/2014-10-16-inside-the-ancs-pyramid-scheme. 129. http://mg.co.za/article/2014-10-16-inside-the-ancs-pyramid-scheme. 130. “Mbeki blasts Zuma’s leadership”, Times Live, 21 October 2014. 131. http://www.bdlive.co.za/national/2015/11/02/tripartite-alliance-is-dead-says-motlanthe. 132. http://www.bdlive.co.za/national/politics/2015/11/08/the-anc-comes-first-not-the-country-says-zuma?cx_tag=bcuf. 40 PART III SAMonitor

There are members and supporters who deplore are part of some years of repudiation of the these dynamics, but they have limited influence. values on which democratic South Africa was As Steven Friedman, director of the Centre for the established. This period has seen the undermining Study of Democracy, has stated: of constitutionalism and the distinction between public and private wealth being blurred.134 There are, broadly, two kinds of leaders still in the ANC – those who know that much of ANC funding troubles what the critics say is true but seem powerless to do much about it and those who are part In South Africa, legislation currently ensures that of the problem of which the critics complain. no party is obliged to disclose who its corporate Right now the second group does more or less or private donors are. For nearly twenty years, what it likes whatever the first one says – at the ANC had failed to introduce the legislation the weekend, the KwaZulu-Natal ANC chose required to ensure transparency in party funding.135 its top leadership by slate voting, which the Nevertheless, much is already known of the ANC’s national leadership solemnly banned a few organizational structure, culture and mechanisms weeks ago. The critics are not telling the first particular to raising money. group anything it doesn’t know or the second anything it is willing to hear.133 Business Day editor Peter Bruce speculated in 2013 that ANC finances and bankruptcy would probably The factional struggles are also expected to increase in the run-up to local elections in 2016, the election result in the party returning to its dependence on of an ANC leader in 2017, and the general elections foreign funders, especially among non-Western powers.136 In 2014, reports emerged that the ANC in 2019. The split in the ANC-aligned COSATU and 137 the resulting competition between trade unions, as was broke. The ANC denied the reports. well as pressure from key potential constituencies like the urban middle class, will reinforce factional As the ANC prepares for next year’s tensions and struggles. They will also reinforce the dynamics of a hybrid regime. local government polls, it has debts of R19 million from last year’s Sometimes factional struggles have taken the form general elections. of intimidation or political assassinations, especially at some local and provincial levels. Raymond The ANC spent close to R500 million to fund the 2014 Suttner, honorary professor at the University of election programmes. By that time, the ANC still the Witwatersrand, as well as an ANC activist and owed R31 million to 16 creditors. The ANC’s liabilities former political prisoner, stated in August 2013: decreased dramatically in 2015 to R12 million and it and had reduced its loans from R12-million to R1.4- (W)holesale assassinations have become a million. The party receives most of its income through regularised way of deciding on leadership and fundraising initiatives, which contributed 67% of its access to wealth within the ANC and its allies. income in 2015. The party’s recommendation that This is a time when lawlessness is widespread. public-party funding be increased is a sign that, even Consequently one should have realistic with creative fundraising methods, it is still struggling expectations and recognise that these events with its finances.138

133. http://www.bdlive.co.za/opinion/columnists/2015/11/11/anc-cannot-be-surprised-by-former-leaders-criticism. 134. http://raymondsuttner.com/2013/08/18/raymond-suttner-government-and-tripartite-aliance-no-pitch-at-marikana- memorial/#more-1884. 135. Judith February, “What’s their secret? ISS calls for transparency in political party funding”, Institute of Security Studies, 27 March 2014; http://mg.co.za/article/2014-08-10-anc-asks-civil-servants-to-help-fund-party-report. 136. http://www.bdlive.co.za/opinion/columnists/2013/11/18/thick-end-of-the-wedge-zuma-is-pretty-well-untouchable- politically. 137. 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. 138. http://mg.co.za/article/2015-10-15-shell-house-sold-to-pay-anc-debt; http://mg.co.za/article/2015-10-15-anc-in- debt-but-confident-of-future-income. 41 SAMonitor PART III

Presidentialism and the executive senior ANC member, Ben Turok, was not invited to the national general council and said in response: “I think that this NGC may not be as open to Unaccountable presidentialism constitutes a key discussion as it ought to be.”142 force in the ANC’s hybrid regime. The ANC under Zuma has used a big cabinet to ensure the support of key constituencies and networks. In his second Party-state separation, cadre term after the 2014 elections, Zuma appointed deployment and patronage 36 ministers and 37 deputy ministers.139 While he is among the fifteen best-paid presidents in the The ANC has adopted “democratic centralism” as world, the total cost of the cabinet is estimated at a central policy: this means that the making of all about 100 million Euro. policy decisions is concentrated in the NEC, the ANC’s highest decision-making body. This policy The political analyst and journalist Gareth van is not only indifferent to the federal structure and Onselen comments: multiple centres of policy-making envisaged by the Brutal political turnover works in his favour. He South African Constitution. In its execution, itis corroding the democratic checks and balances built has reshuffled his executive eight times since 143 2009 – more than 100 changes in ministerial into the Constitution. and deputy ministerial positions. There have been more than 120 changes in seven years The ANC pursues democratic centralism by a of directors-general – the average career of a policy of cadre deployment. This policy entails director-general under Zuma is less than 16 placing party loyalists in “key centres” of power. months. There is an argument to be made, then, The ANC conference in 1997 identified these that Zuma thrives in chaos. The relentless merry- centres of power as “the army, the police, the go-round at senior management and executive bureaucracy, intelligence structures, the judiciary level means no one is ever comfortable and [my cursivation], parastatals, and agencies such everyone’s allegiance is first and foremost to as regulatory bodies, the public broadcaster, the the president, for fear they will be pushed off central bank and so on”. The 2007 ANC Polokwane the ride or in the hope they will be invited to conference, during which Jacob Zuma was elected join it. 140 as president of the ANC, added the “private sector”. Cadre deployment has been used to quell dissent While the ANC’s top six officials are influential in and to co-opt potential internal opposition from Pres Zuma’s political decisions, on other decisions the ANC’s parliamentary caucus. In addition, the and appointments he is allegedly influenced by a ANC and bureaucratic structures are permeated “kitchen cabinet” of people mainly located outside by informal, patron-client relationships that often official ANC party structures.141 stem from the struggle period, family and ethnic networks, spiritual advisers, and new business Former director-general in Thabo Mbeki’s presi­ partnerships.144 dency, Frank Chikane, warned the party was struggling to “express internal criticism”. Another

139. http://www.welt.de/politik/ausland/article148671171/Zuma-verprasst-Millionen-fuer-Luxus-Praesidentenjet.html. 140. 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. 141. http://mg.co.za/article/2014-05-22-kitchen-cabinet-helps-jz-to-rule. 142. http://www.bdlive.co.za/opinion/columnists/2015/11/02/zumas-control-over-top-salaries-buys-him-loyalty. 143. William Mervin Gumede, Thabo Mbeki and the Battle for the Soul of the ANC (Zebra Press, Cape Town, 2005), p 305. 144. Stephen Ellis, External Mission: The ANC in Exile, 1960-1990 (Hurst, London, 2012); Tom Lodge, “Neo-patrimonial politics in the ANC”,African Affairs, 450, 2014; http://mg.co.za/article/2014-10-16-inside-the-ancs-pyramid-scheme. 42 PART III SAMonitor

Pres Zuma’s active participation in such relationships In practice, patronage politics has resulted in the has also reinforced their role in the regime. The number of civil servants ballooning from a million NEC is the ANC’s highest decision-making body. in 1994 to more than three million in 2014. Salaries It is responsible for carrying out “the decisions have also exceeded the inflation rate. and instructions of the national conference and the national general council (NGC)”, as well as In essence, the taxpayers are funding day-to-day instructions to the party. Zuma wields the ANC’s growing cadre-led patronage considerable power over the body of 110 party machine. The civil servant wage bill members. increased by 76% during the first four About 60% of members, 64 of them, and about years of Zuma’s presidency.147 73% of the 80 members elected, are beholden to Zuma for their public positions and salaries. In some areas that may affect political support in Zuma’s influence is slightly diluted with regards to the short term, the ANC does provide good services, Parliament’s committee chairs and provincial and which also serves as a form of patronage. Housing local government appointments. However, they for the poor has meant that one in five now lives would all have to meet with his approval as party in a state-provided house. Based on support from leader in these well-paid positions. Patronage has the financial services sector, and the redistribution turned cadre deployment into a policy that does of tax money from a small base of taxpayers, the not only ensure control on the party’s behalf, but state delivers pensions, child-support grants and has also morphed into a means to ensure the disability payments to more than sixteen million unfettered power of the presidency. 145 people per month.148

Informal relations may in theory be functional Van Kessel states that when it comes to social for formal institutions in the sense that they grants, the South African state functions as a complement them or that they compensate bureaucratic state, dispensing its services to those for weak institutions. However, they reinforce who qualify and not only to ANC loyalists. When it several problems in the ANC’s hybrid regime: the comes to the allocation of housing, contracts and neutralization of democratic checks and balances certainly recruitment for jobs, there is ample room by cadre-related networks with a non-pluralist for favouritism, but the social grants system seems political culture; unaccountable presidentialism; largely immune from political interference.149 opaque decision making and selective patronage According to the World Bank, such an approach, in the party and state institutions; the uneven combined with a redistributional tax system, has electoral playing field in a one-party-dominant lifted 3.6 million people out of poverty in the recent state; and the gaps in the legitimacy of the hybrid past.150 regime due to weak protection of its citizens and communities as a whole.146

145. 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. 146. “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. 147. “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. 148. http://www.bdlive.co.za/opinion/2013/05/31/anc-will-deliver-just-enough-to-stay-in-power. 149. Ineke van Kessel, “The Changing Meaning of Change: The legacy of the United Democratic Front in South Africa”, IVth European Conference in African Studies, Nordic Africa Institute, Uppsala, Sweden, 15-18 June 2011, p 14. 150. http://businesstech.co.za/news/international/72934/south-africa-among-the-most-unequal-countries/ and http:// www.worldbank.org/en/topic/poverty. 43 SAMonitor PART III

The current model has a political effect: it According to Greene, public resources can be reinforces citizens’ dependence on the ANC-ruled used for partisan purposes by appointing party state. It is also increasingly difficult to sustain, due supporters to senior positions in publicly-owned to the minority of taxpayers and rising state debt. corporations. In various ways, public resources With notable exceptions, like the raising of tax by are transferred to the party: through politicized the South African Revenue Service, even cabinet appointments in the bureaucracy to reward ministers admit that the broader ANC-controlled party supporters and punish party opponents; by civil service provides very uneven service delivery.151 privileging party-aligned businesses to contract In the past months, the lives of citizens, business with the state and publicly-owned corporations; and state institutions have been disrupted by the by contracts for public works contracts and other consequences: several crises regarding postal forms of tenders, subsidies, advertising revenue and water services, and the ESKOM power utility and tax breaks to such entities.153 constantly on the verge of collapse.152 As a result, the tools of repression and Reshaping markets and the electoral fraud need not be relied on in democratic playing field a hybrid regime. People and enterprises As the political scientist Kenneth Greene has soon learn that their prospects depend demonstrated, where there has been a one- on their political connections. party-dominant system for several terms in office, the dominant party tends to politicize the government’s public resources. The party then uses them for partisan purposes. There is no external constraint in the form of possible alternation, and no internal constraint either. The bureaucracy is politically controlled through non-merit-based hiring, dismissal, demotion and promotion. This monopoly also reinforces the political dominance of the party.

151. http://www.bdlive.co.za/national/2013/09/11/management-in-public-service-deteriorating-reports-chabane. 152. “SA revisits the dark age”, Daily Maverick, 3 November 2014; “What does Eskom’s ‘junk’ downgrade mean for power supply?”, Rand Daily Mail, 11 November 2014. 153. 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. 44 PART IV SAMonitor

separation of the executive and legislature154

On 13 November 2014, opposition par­liament­ arians were criticizing the ANC’s refusal to let Zuma appear in Parliament to answer questions related to alleged irregularities when armed riot police entered. One opposition MP, who refused to heed the speaker’s injunctions to stop calling Zuma a thief, was removed by the police. Timeslive reported: “President Zuma’s demand that ANC MPs use their numbers to crush opposition in Parliament is at the center of the chaos that erupted this week”. The liberal former editor of the Rand Daily Mail, Allister Sparks, commented: “This is outrageous. This is no longer democracy”.155

The event was one signal among many that the ANC’s dominance during five elections has eroded the checks on power created by the Constitution, also Parliament’s oversight role. As explained above, specific ANC policies like “democratic centralism” and cadre deployment by the party to Part IV national and provincial executives and legislatures have weakened the separation of powers.

Prof Raymond Suttner has summarized an account The of a second event: On the evening of 12 February 2015 President Jacob Zuma presented his State of the Nation legislature, Address to a combined sitting of the National Assembly and the National Council of Provinces. Before the sitting began media and MPs complained that mobile phone signals had been elections blocked … MPs would not allow proceedings to begin until the signal was restored, which it was. and violent When the president began his speech, EFF MPs rose repeatedly to ask questions on the basis of various rules of Parliament. The Speaker read prepared answers saying that the rules politics of Parliament did not cover their questions Weak separation of the weak 154. This section is largely based on 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 and Samuel Issacharoff, “The Democratic Risk to Democratic Transitions” at http:// constitutionaltransitions.org/wp-content/uploads/2013/09/Issacharoff-Democratic-Risk-to-Democratic-Transitions.pdf. 45 SAMonitor PART IV

and observations and eventually, after repeated party list, and the NEC draws up the ANC’s party interruptions, EFF leader, Julius Malema and list. Even elected MPs can be redeployed by the subsequently, deputy leader ANC’s NEC and replaced by another ANC cadre. The were asked to leave the House. non-parliamentary wing of the ANC dominates the parliamentary wing.157 When they and another EFF MP who had asked questions refused to leave the Speaker asked Unelected party functionaries thus set the national the Parliamentary services to remove them and government’s policy priorities. The public officials then also made a vaguely phrased reference to subject to electoral accountability tend to be other security services. subordinated to unelected party functionaries.158 Politics are pulled out of the elected legislature The television feed then focused on the into the party and into processes that lie outside Speaker’s podium so that it was not possible Parliament. Politicians do not need to comply with for viewers to see what was happening at that the same norms of transparency, participation and point. Footage provided from mobile phones by accountability. eNCA reporter Paula Chowles amongst other showed the entry of men wearing white shirts The non-alternation of power in a who used considerable force to evict not only the MPs ordered to withdraw by the Speaker hybrid regime but all EFF MPs. Some EFF MPs fought back. A female MP, Reneilwe Mashabela, was badly According to political scientists, democratic injured and hospitalised for a broken jaw. Zuma consolidation entails not only compliance with was photographed laughing as these events the framework of electoral democracy for political unfolded. 156 competition, but also at least one electoral loss, coupled with a transfer of power.159 Political Strict enforcement of ANC party discipline against competition, including a viable opposition and the ANC MPs has also weakened national legislative credible possibility that an election may remove oversight of the executive. Formally, legislative a party from office, lowers the risk of a governing authority is vested in Parliament, but in practice party abusing its power. its role has been reduced to approving bills drafted by the ANC-led executive. Behind the formal ANC statements and actions do not reflect an structures and processes, cadre deployment and appreciation that without the viable option of the party rule. alternation, a substantial democracy does not exist. They rather project a sense of entitlement to The ANC’s NEC has tremendous power over never-ending rule, based on the ANC’s history of elected MPs. The system of closed-list proportional armed struggle against the previous political order. representation assigns legislative seats to This approach reflects the non-pluralist political candidates based on their relative position on a culture described.160

155. “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. 156. http://www.dailymaverick.co.za/article/2015-04-06-op-ed-party-loyalty-patronage-and-the-future-of-the-south- african-parliament/#.VXbwE8sR672. 157. 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. 158. William Mervin Gumede, Thabo Mbeki and the Battle for the Soul of the ANC (Zebra Press, Cape Town, 2005), p 272. 159. 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). 160. Stephen Ellis, External Mission: The ANC in Exile, 1960-1990 (Hurst, London, 2012), pp 298-299, 301-302. 46 PART IV SAMonitor

After the Nkandla scandal involving Pres Zuma, However, others from largely black and poorer Prof Raymond Suttner, former ANC activist, stated: communities also feel excluded from existing forms of ANC patronage. Many of them turned to What is the weight of our constitution if we protests as a form of political participation, often cannot hold Zuma and the many other mini- in conjunction with voting support for the ANC.163 Zumas, proto-Number Ones accountable? The Data of the SAPS shows that there are four to ANC will be voted back into power. From what five violent “anti-government” protests per day we can see, even if they were to ditch Zuma in South Africa. The Gauteng province alone had as too embarrassing there are many others experienced more than five hundred protests since who could come forward and play a similar the beginning of 2014, of which over a hundred role. The crisis may suggest a more profound had turned violent. According to a research group, phenomenon signifying our simultaneous Municipal IQ, there has been a sharp increase in enfranchisement and disenfranchisement as protest action over the past five years. a people. We have the vote but its effect has 161 been neutralised. The protests combine with declining voter turnout and signal alternative ways of voicing disagreement. To some extent, such dynamics are visible in all Often, as Beresford indicates, they also constitute communities in South Africa. Among the Afrikaner political participation and competition within and English-speaking white communities, the ANC over access to positions, resources and emigration has reached proportions of 10-15% opportunities.164 As such, they have become part or more, a percentage usually encountered in of the politics of a hybrid regime. conflict zones. It constitutes the loss of hundreds of thousands of skilled professionals, productive business people and young families. The elections of 2014

High numbers of black, Asian and so-called coloured Elections in South Africa have occurred within the professionals have also emigrated since 1994. For context of a one-party dominant state for the past many, it was in response to the lack of security twenty years. Furthermore, pockets of citizens provided to citizens in the hybrid regime. Citizens live comfortably, while the majority are relatively from these groups also formed the backbone of poor and a large percentage of the population is protest voters and supporters of the multiracial unemployed. Nicola de Jager, a political scientist at main opposition party, the DA. Many self-help the University of Stellenbosch, states: initiatives have emerged in several communities, because limited help is expected from the ANC- In such an environment, the incumbent’s ruled state. For example, AfriForum, a civil rights ability to create jobs, issue tenders, pay for movement for minorities, has expanded its advertisements, determine economic policy membership from just more than 9 000 in January and otherwise influence the movement of 2010 to 155 000 by the end of 2015.162 resources is a pronounced advantage ... In SA,

161. http://www.dailymaverick.co.za/article/2014-03-25-analysis-nkandla-signifies-our-disenfranchisement/#. UzXJH7mKDIU. 162. http://www.netwerk24.com/stemme/2014-08-06-afriforum-se-wenresep?redirect_from=beeld; www.afriforum.co.za. 163. http://www.cnbcafrica.com/news/southern-africa/2014/06/06/safrica%E2%80%99s-youth-hardest-hit-by- unemployment/. 164. http://www.issafrica.org/crimehub/public-violence. 47 SAMonitor PART IV

the ANC gains an important advantage between CASE’s research shows that the ANC uses elections, as it has the lion’s share of public strategies that go beyond the charm offensive funds, access to private funding through party- when engaging with the poor electorate that owned businesses and reaps the rewards of makes up its support base during campaigning cadre deployment within government. In this periods. These strategies include providing poor context, elections might be free, but declaring households with inferior services thinly disguised them to be fair becomes problematic.165 as a caring government, intimidating members of opposing political parties and maintaining the Moreover, efforts to use a combination of support of poor workers by controlling worker mobilization, patronage and intimidation usually politics through its alliance with COSATU. proceed long before election monitors take to the field. The Community Agency for Social Enquiry It does this, in the short term, by engaging in (CASE) did field research into the voting of the poor disinformation, such as threatening to stop before the 2014 elections. CASE’s research points social security grants and linking government to the increasingly transactional nature of voting social security delivery to the provision of in South Africa, where votes become a transaction services by a political party. Government services currency: a means of buying goods and services are delivered to the poor in a manner that from a political elite, and not just an expression strengthens the ANC’s political party support. of confidence in the inherent capabilities ofa particular party or leader.166 The ANC also displays its power and strength in an intimidating manner using huge numbers of its supporters to induce a sense of fear and anxiety According to Mohamed Motale, CASE’s among the poor electorate. This is apart from engaging in direct acts of intimidation, such as director, the ANC uses the economic needs controlling campaigning venues and organising and anxieties of poor people to influence marches to disrupt opposition political parties. These big brother bullying tactics target their voting patterns: opposing political party supporters. 167 The only lifeline that poor households have are A hybrid regime resting on 35% of social security grants and the services rendered to 168 them by the Department of Social Development eligible voters? in collaboration with other departments, such as health and education. Notwithstanding how The ANC gained the support of about 35% of the poorly they are managed and resourced, the eligible voters in the 2014 national elections. The roll out of these services keep poor households group who did not vote was the single biggest going … [R]ational behaviour under these group, namely 43%. The shrinking base of actual perilous and precarious conditions means that voter support also reflects how the locus of politics people hold on to what they have and the best has shifted from democratic institutions tothe way of doing that is keeping the ANC in power. zone of interaction between democratic and non- In this way, the ANC uses the economic needs democratic institutions of a hybrid regime. The and anxieties of poor people to influence their elections now interact with the non-democratic voting patterns. institutions of the hybrid regime.

165. 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/. 166. http://allafrica.com/stories/201405010719.html. 167. 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. 168. http://www.issafrica.org/voter-participation-in-the-south-african-elections-of-2014. 48 PART IV SAMonitor

Among the 57% of eligible voters that did vote, could compensate for some losses in urban areas.172 the ANC won decisively with 62.2% of the national During the campaign, the KwaZulu-Natal Member of vote.169 The largest opposition party, the liberal the Executive Council, Meshack Radebe, stated that DA, secured 22.2% of the vote. The newcomer, the social grants are only for “ANC supporters”.173 socialist EFF, established itself as the third-largest political party nationally with 6.4% of the vote. Actual physical violence was not widespread The other 29 political parties that contested the enough to have significantly influenced the national elections shared the remaining 9.2%. outcome of the national elections, but it made a difference at local levels. In the six months leading Hertzberg comments: up to the election on 7 May 2014, 76 incidents of election-related violence had taken place. Of these, The turnout of registered voters in the 2014 two-thirds turned violent. Where the political elections was 73% … When the turnout is affiliation of perpetrators was known, the main examined as a proportion of the eligible voting- perpetrating party was the ANC (52%), followed by age population turnout over 20 years, the the EFF (26%).174 figures confirm a decline in participation from 86% in 1994 to 72% in 1999 and 58% in 2004. Political violence could also escalate during the Only in 2009 was there a slight rise to 60%, 2016 local government elections. For many local but this was again followed by a drop to 57% politicians and officials, their government salaries in the 2014 elections. It appears that there is and access to state resources constitute the an increasing number of eligible South African main route out of poverty. To date, most political voters who do not cast a vote. assassinations have tended to be at local levels.

The ANC’s share of the vote declined from 70% A split in the Tripartite Alliance in 2004 to the lowest percentage yet … As a result, the proportion of eligible voters voting On 9 November 2014, the National Union of for the ANC decreased to 35%, continuing the Metalworkers of South Africa (NUMSA) was expelled steady decrease since its peak at 54% in 1994. 170 from the ruling alliance’s COSATU federation of trade unions. The COSATU executive voted to expel During the elections, the ANC experienced setbacks NUMSA.175 Ostensibly, the reason was that it had in several bigger urban constituencies. According contravened COSATU’s rules. In March 2015, it to estimates, more than 750 000 black voters did also expelled Zwelinzima Vavi, the COSATU general not vote for the ANC, but for the opposition DA.171 secretary. Most voters among ethnic constituencies like the Asians, Afrikaners, English-speaking whites and NUMSA was the largest of nineteen COSATU coloureds supported opposition parties. affiliates, and the split marked the biggest split in the ANC-led Tripartite Alliance since 1994. NUMSA However, the ANC used political mobilization and took the unprecedented decision not to endorse patronage in the populous and largely rural KwaZulu- the ANC ahead of the May 2014 elections. It Natal, Zuma’s ethnic and political base. Thus, it also called on Zuma to step down over a scandal

169. By 2015, many supporters considered the ANC to be underperforming regarding crime, corruption and job-creation. http://mg.co.za/article/2015-05-21-even-anc-voters-say-the-ruling-party-is-performing-badly#.VWCZFCQrV0M. mailto. 170. http://www.issafrica.org/voter-participation-in-the-south-african-elections-of-2014. 171. “DA hails growth among black voters”, eNCA, 9 May 2014. 172. http://uk.reuters.com/article/2014/05/04/uk-safrica-election-zulus-idUKKBN0DK04P20140504. 173. 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. 174. http://issafrica.org/iss-today/what-does-increasing-political-violence-mean-for-the-future-of-south-africas- democracy. 175. See several articles of Terry Bell on Fin24, including “Numsa expulsion may cause train smash”, Fin 24, 14 November 2014. 49 SAMonitor PART IV involving R246 million of taxpayers’ money spent Student protests indicate rebellious on his private homestead, Nkandla. constituencies The split reflected the increased hold of the ANC on COSATU, the strength of the pro-Zuma faction, The biggest student protests to hit South Africa and broader factionalism in the ANC and labour since 1994 erupted in October 2015. The students domain. However, once two million members- had rejected an earlier government offer to cap the strong, COSATU now faces a split as six more increase of study fees at 6%, down from the 10% to affiliates protest Vavi’s dismissal. The pro-Zuma 12% proposed by the management of universities. candidate lost during the election in June 2015 of a The demonstrations, often involving intimidation new NUMSA leader.176 and violence, closed some of the country’s top universities. Songs were sung, placards raised and Traditionally, the COSATU affiliates have been an entrances to campuses barricaded with burning important source of funding and voter mobilisation tyres.179 Protests at Parliament in Cape Town for the ANC, since they have members, money and turned violent and subsequently the police used organizers. The event will reinforce the factional stun grenades and water cannons to stop a group struggles and militancy in the labour field, which of students breaking into the Union Buildings, the is closely linked to the competition over access to seat of government in Pretoria.180 posts, resources and opportunities. It could also add to political pressure on the ANC in the run-up The surface reasons were clear. The ANC to the 2016 local elections.177 government has invested much more generously in secondary than in tertiary education over the Factionalism is also fuelled by the new power past two decades. About 12% of the education constellation in the ANC. During Pres Mbeki’s time, budget goes to tertiary institutions, compared to the provincial ANC structures were not as strong as 20% elesewhere in Africa. The government allowed they are now. Today, several ANC provinces have university numbers to double in less than 20 years had the same leaders for nearly a decade. They are while underfunding the sector. As a result, real per stronger positioned and have greater aspirations capita funding on tertiary education has dropped of national power, which would give them access by 30%. The cost of servicing tertiary institutions to more resources. A similar dynamic is apparent thus shifted incrementally towards those trying to in bigger branches in ANC regions. Zuma’s rise get into them in the form of rising student fees. to power at Polokwane was partly based on his promise of allowing them more autonomy. Until However, some analysts see a political logic behind now, Zuma has been able to maintain control this government policy. Investment in secondary through patronage and other networks. However, education is an investment in political loyalty; it the resources of the government are declining and keeps influential organisations such as the South Zuma’s power is ebbing away during this possibly African Democratic Teachers Union (SADTU) last phase of his tenure.178 supportive of the ANC. In contrast, investment in

176. http://m.news24.com/news24/Columnists/MaxduPreez/Balenis-defeat-a-political-earthquake-for-ANC-20150609. 177. http://www.ft.com/intl/cms/s/0/5c490d02-68e3-11e4-9eeb-00144feabdc0.html#axzz3IlCuoo9Z; http://today. moneyweb.co.za/article?id=466373&acid=Z254vWXulCUeZeuwhd4cWQ%3D%3D&adid=CxgRuNO6fqMeZeuwhd4c WQ%3D%3D&date=2015-04-22#.VXbCkssR673. 178. http://www.dailymaverick.co.za/article/2015-10-27-analysis-a-new-era-of-uncertainty-beckons-in-the-anc/#. VkZBBZqBfmS. 179. 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. 180. 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. 50 PART IV SAMonitor the tertiary sector seems an investment in critical His explanation is twofold: increases in service and independent opposition voices among the delivery appear to heighten citizens’ awareness of, black urban middle class. and exposure to, corruption. Those places in which there is the greatest improvement in services are The unrest also occurred amid concerns that the also those places in which local politicians self- political order, with its increase in service delivery enrich the most. Secondly, increases in service protests, is becoming more, rather than less, delivery appear to change voter expectations, polarized among the young urban middle class too. ratcheting them upward. Once voters are provided with basic services, they may alter their expectations and demands of government, seeking The ANC leadership is increasingly being out alternative parties. This could occur either discredited by scandals and corruption, through changing needs and desires, or through selective patronage is obvious, and the revised understandings of government capacity.182 economy is unable to improve youth The non-democratic tenor of politics unemployment. Political pressures linked to claims on resources Discursive shifts towards an assertive black identity by key ANC constituencies are intensifying. So is politics and radical economic restructuring have also factional competition inside the Tripartite Alliance. occurred among these constituencies. “This is just There is a perception among some analysts and the tip of the iceberg,” says Sinabo Mnqonoiwa, a NGOs that while elections may occur every four 27-year-old postgraduate student at the University years, politics have acquired a non-democratic of the Witwatersrand in Johannesburg. “There’s no tenor. Henning Melber of the Dag Hammarskjöld Rainbow Nation – it’s on paper, we are all free on Foundation writes with reference to the government paper”. As a result, the ANC may find it necessailry in South Africa, but also in Angola, Mozambique, to invest even more in specific rural constituencies Namibia and Zimbabwe: and power-holders to ensure it gains electoral victories.181 The form of democracy practised has been unable to dislodge the liberation parties in any Prof Evan Lieberman, professor in African politics at of these countries. Instead, they have formed MIT, has found that those who have benefited least dominant-party-systems based on a de facto from the power transition in 1994 may continue one-party rule. A key feature determining the to support the ANC in the hope that the ANC will political culture in all these states in various finally deliver to them. Those who have benefited degrees is the consistent use of structural most seem most likely to drive political change. In violence to repress and disenfranchise political communities which show large increases in service opponents in order to retain power.183 provision (piped water, flushing toilets, refuse collection), changes in ANC vote share are actually Melber sees a lack of checks and balances, lower, often even negative, relative to those areas practices of exclusion and rule by law (as law of which saw smaller or no gain in services. the rulers) instead of rule of law, and control over

181. 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. 182. https://www.washingtonpost.com/news/monkey-cage/wp/2015/11/10/in-south-africa-voters-do-not-reward-good- service/. 183. 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. 51 SAMonitor PART IV agencies supposedly tasked to act independently General Intelligence Amendment Bill, will block from the governing bodies and political authorities, the free flow of information, protect the corrupt as among the manifestations of structurally and monitor citizens’ email, Mxit, Facebook, embedded violence under these parties. Twitter and Skype communication …

Their equation that the party is the government Other attempts at intimidation happen, but and the government is the state translates into nobody can pin the blame on the state. Earlier a specific form of authoritarian rule.184 this year, Constitutional Court judge Sisi Khampepe and Advocate Muzi Sikhakhane’s Karl von Holdt, director of the Society, Work and homes were burgled and their laptops stolen. In Development Institute at the University of the the case of Sikhakhane (who also acts for Julius Witwatersrand, concludes that three forms of Malema), one of the documents stolen was an intra-elite conflict occur.185 The first is the struggle affidavit by Tokyo Sexwale requesting a probe for factional control over the coercive instruments into Richard Mdluli’s alleged abuse of state of the state, covered in Part IV. The second form is resources. local protests and violent struggles, often related to intra-elite contests over access to positions and One should be circumspect about such resources. The third form is political assassinations. allegations. This is a country with much crime. Yet, in the past 18 months, my own office was Mark Heywood, executive director of the civil broken into twice, late at night, using the same rights group Section 27, refers in an article that cat-burglar method of entry. The first time, my appeared in the Sunday Times of 13 October 2013 external hard-drive (containing a manuscript on to several incidents of threats, veiled threats and the arms deal) was stolen. The second time, the burglaries targeting civil NGOs.186 A report by visitors took nothing because the hard drive was the NGO Right2Know (R2K) in 2015 details cases stored elsewhere (and for the record, I am not of surveillance and harassment of academics, sitting on some smoking gun). All other shiny unionists and community activists.187 Hennie van objects were left untouched. It may be ordinary Vuuren, the former director of the Cape Town crime; it may be coincidence. office of the ISS, describes the context as follows: Far more worrying is the alleged suicide of the Researching the Mdluli saga, I was struck by the secretary of the commission of inquiry into fact that some of the country’s highest-ranking the arms deal, advocate Mvuseni Ngubane, in current and former police chiefs were afraid to May. On the same day he met the president, speak on their cell phones … Are top cops really he climbed into his car and shot himself. He that afraid a criminal network controls police had no known financial or personal problems. intelligence? And this under the noses of the Whatever the reason for his death, it has minister of police, minister of state security and delayed the commission. It is unlikely to start its the president? public deliberations before the ANC’s Manguang conference and will probably conclude only What is certain is that a climate of fear grips after the 2014 elections – a happy coincidence politics in South Africa and it is driven bythe for corrupt businesspeople, arms dealers and securocrats. The Protection of State Information politicians alike. 188 Bill (the “Secrecy Bill”) and its ugly twin, the draft

184. 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. 185. Karl von Holdt, “South Africa: the transition to violent democracy”,Review of African Political Economy, 40(138), 2013, pp 589-604. 186. For similar conduct under Pres 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. 187. http://www.dailymaverick.co.za/article/2015-04-29-right2know-intelligence-agencies-harass-political-activists-and- civic-organisations/#.VUC_nZUcTIW. 188. http://mg.co.za/article/2012-08-17-00-zuma-why-were-not-laughing-any-more. 52 PART IV SAMonitor

Archbishop Emeritus Desmond Tutu, a fervent anti- KwaZulu-Natal, Free State and Mpumalanga. Just apartheid activist and Nobel Peace Prize laureate, before the Mangaung conference of the ANC in indicated in May 2013 that he would “very sadly 2012, Obuta Chika, a district secretary of the ANC in not be able to vote for the ANC after the way Northwest Province, was shot in the driveway of his things have gone”. As reasons, he referred to house. pervasive state corruption, mismanagement and the intimidation of political opponents.189 Corrupt policemen and private security people, as well as assassins from neighbouring countries like Mozambique and Zimbabwe are used. Most Political assassinations in a hybrid victims are watched and shot. James Nkambule and regime sixteen other politicians who could have revealed tender corruption related to building projects for the Political intimidation also occurs in the form of FIFA Soccer World Cup Tournament of 2010 were political assassinations.190 There have been more than killed, Nkambule by poisoning. No one has been fifty political assassinations between 2007 and 2012. prosecuted. More than 80% of the hitmen or those who ordered them are still walking around free.191 In August 2013, Gauteng-based ANC youth leader Kabelo Matsepe Raymond Suttner, a lawyer and honorary professor in March 2015 reported to the police a case of at Witwatersrand University, as well as a former ANC housebreaking where he found “two bullets” on activist and political prisoner, stated: top of a table in his apartment and a note reading: “stay away from Mpumalanga”. His personal (W)holesale assassinations have become a computers, an iPad phone and several documents regularised way of deciding on leadership and had been removed from his apartment. He said that access to wealth within the ANC and its allies.192 he suspected the threat was “linked to sensitive documents exposing corruption in Mpumalanga that some political leaders have been trying to get 194 In November 2014 alone, an ANC councillor was from him”. shot dead in Cape Town and COSATU reported the body of one of its regional chairpersons was found The trend seems at present to be largely floating in a dam. Andile Lili, of the Ses’khona concentrated in northern provinces, and have an People’s Rights Movement, was shot outside impact on politics. Mary de Haas, an independent his home in Khayelitsha after his organization’s security monitor, states that even experienced standoff with the ANC. ANC cadres in KwaZulu-Natal dislike travelling to meetings at night for fear of being attacked. Hennie Motives for other political killings have included the van Vuuren, former director of the Cape Town silencing of whistleblowers revealing corruption in office of the ISS, describes the situation as follows: the ANC or civil service, the targeting of political opponents, or competition for positions in the In the shadows, formal and informal security ANC or civil service that provide access to public networks are settling scores and doing the dirty funds and cash from firms eager to buy political work of those in power. Collusion between the 193 people who have the guns and the people who influence. A few provincial cabinet members 195 and senior ANC officials have been suspected of have the money is infecting our politics. or involved in such killings in Northwest Province,

189. “Tutu: I will not be able to vote for the ANC”, Mail and Guardian, 10 May 2013. 190. http://www.bdlive.co.za/opinion/columnists/2013/08/12/political-assassinations-how-the-anc-is-killing -its-own; http://www.ft.com/intl/cms/s/0/b8a413ee-f855-11e2-92f0-00144feabdc0.html#axzz2dL5TbrWy; http:// thinkafricapress.com/south-africa/political-violence-south-africa-growing-pains-democracy-or-adolescence-anc. 191. http://inside-politics.org/2012/07/04/the-ancs-top-20-violent-fights/; http://www.politicsweb.co.za/politicsweb/ view/politicsweb/en/page71654?oid=785594&sn=Detail. 192. http://raymondsuttner.com/2013/08/18/raymond-suttner-government-and-tripartite-alliance-no-pitch-at-marikana- memorial/. 193. http://thinkafricapress.com/south-africa/political-violence-south-africa-growing-pains-democracy-or-adolescence- anc; http://www.issafrica.org/crimehub/policy-brief/political-killings-in-south-africa-the-ultimate-intimidation; http://www.dailymaverick.co.za/article/2015-03-03-sa-whistleblowers-assassinations-victimisation-marginalisation- for-doing-the-right-thing/#.VXcDtssR671. 194. http://www.bdlive.co.za/national/2015/03/09/housebreaking-may-be-politically-motivated. 195. http://mg.co.za/article/2012-08-17-00-zuma-why-were-not-laughing-any-more. 53 SAMonitor PART V

Decreased separation of powers

The separation of powers in a democracy can only work if the impartiality and competence of the judiciary, police and prosecuting services are ensured. In South Africa’s hybrid regime, the separation of powers has been decreased, also by cadre deployment and informal patron-client relations, sometimes in the criminal domain. There is strong protection of the ruling elite, but the hybrid regime provides a weak and uneven protection of citizens and communities against traumatic violent crime. A serious emerging trend is the apparent withholding of proper protection of citizens and communities that are not considered to be part of the ruling faction. Zuma and the arms scandal

South Africa has a formal conventional economy, which has become strongly entangled with the ANC political elites. However, there also is an informal economy, part of which is dominated Part V by crime syndicates with links to politicians and security agencies. As in countries like Mexico and Colombia, these two domains co-exist in the The politics of same political system.196 Historically, the legal and illegal domains are also interlinked. In the case of the ruling ANC, partnerships of some cadres with drugs and smuggling crime syndicates during the years of the disorder and political underground and exile have continued after 1994. A former Mandrax specialist became a business partner of Billy Masetlha, former chief of the National Intelligence Agency (NIA) and pressures on now a Zuma loyalist.197 The ANC’s Polokwane conference in 2008 which brought Jacob Zuma, a head of ANC intelligence during the underground years, to power, was also attended by Zuma the judiciary confidante Mo Shaik, later head of the South African Secret Service.

196. Jean-François Bayart, Stephen Ellis and Béatrice Hibou, The Criminalization of the State in Africa (James Currey, Oxford, 1999). 197. http://mg.co.za/article/2011-10-21-the-wellconnected-mr-klamp. 54 PART V SAMonitor

Shaik, currently head of the Development Bank of from Sooklal to ensure that Thales got arms deal Southern Africa’s international division, was at the contracts. He signalled his acceptance by using time accompanied by syndicate leader Cyril Beeka, the code words “Eiffel Tower” during a meeting who gave him the lift to Polokwane.198 with Alain Thetard, the then-head of Thales’ South African subsidiary Thint, stating “I see the Eiffel A series of billion-dollar arms trade scandals reach Tower lights are shining today”. to the inner core of the ANC and the foundation of the new political order, allegedly involving the One of the main defences by Shabir Shaik during then minister of Defence Joe Modise and later his trial was that he provided the money to Zuma presidents Thabo Mbeki and Jacob Zuma. The ANC to help an old friend from the liberation struggle. also held a 10% share in Nkobi Holdings, a company Grootes states: of which Zuma’s financial adviser Schabir Shaik, Mo Shaik’s brother, was a director. Nkobi was one Judge Hilary Squires didn’t buy that argument of the companies that benefited from the multi- (partly as a result of the fact that Zuma insisted billion rand arms deal.199 on starting the construction of a home ata little place called Nkandla, when he had no All the details of the arms deal have not been expectation of a source of income unless Shaik unearthed yet, but much is already available in was arranging a bribe. That part of the story isn’t the public domain.200 In 2005 Schabir Shaik was quite over yet.) and so convicted Shaik ... It will convicted on three charges of corruption, fraud, and surely be impossible for Zuma to claim he was that he facilitated a bribe to Zuma from the French not a willing participant. He spent the money arms company Thomson-CSF, which changed its and he wore the clothes.201 name to Thales. “In the end, due partly to the Zuma Spy Tapes, and partly to what was surely political pressure, those charges were dropped on the eve When asked why an outright denial of the of the 2009 elections,” according to political analyst allegations was not declared in the presidency’s Stephen Grootes. statement, Zuma’s spokesman Mac Maharaj said that the matter was before the Seriti Commission The Sunday Times reported in September 2014 investigating the controversy.202 Zuma is alleged to that it had received transcripts of evidence given have brushed off allegations regarding the arms to a judge in a confidential arbitration hearing. scandal with a statement that “corruption is only a The hearing involved Ajay Sooklal, who sat as an crime in a ‘Western paradigm’”.203 attorney with a watching brief for Thales through the Shaik trial. In his evidence, he claimed that Six senior commission staff members withdrew he lobbied every person with influence over the from the Seriti Commission in September 2014 process, in particular the then minister of Justice, saying that they could no longer co-operate with Penuell Maduna. He also claimed that Thales an institution that “is so deeply compromised bought Zuma virtually a new wardrobe in Paris. that its primary outcome will be to cover up”.204 In 2000, Zuma accepted a R500 000 a year bribe The commission has since been disbanded. The

198. Stephen Ellis, External Mission: The ANC in Exile 1960-1990 (Hurst, London, 2012), pp 168-170, 273-274. 199. http://www.dailymaverick.co.za/article/2014-09-29-tall-thales-sunday-times-arms-deal-expos-drills-holes-in-zumas- version/#.VFnvLMt0y71. 200. 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). 201. http://www.dailymaverick.co.za/article/2014-09-29-tall-thales-sunday-times-arms-deal-expos-drills-holes-in-zumas- version/#.VCkwrpUcTIU. 202. http://m.news24.com/news24/SouthAfrica/News/Seriti-Commission-No-comment-on-bribery-report-20140929. 203. “Zuma wanted charges dropped because corruption is a Western thing”,City Press, 12 October 2014. Also see Richard Calland’s intriguing conversation with Mac Maharaj described in “Why Zuma is no Mbeki” at http://www. citypress.co.za/politics/why-zuma-is-no-mbeki/. 55 SAMonitor PART V main political and legal issues at stake in the arms She found that the upgrades went beyond what scandal, including Zuma’s alleged involvement, was required for the security of the president and have not been resolved.205 became “a license to loot”. The expenditure was excessive and Pres Zuma, his family and relatives The unaccountable presidentialism is closely linked improperly benefited from state spending. There to neopatrimonial dynamics at the core of the ANC was the belief among technocrats that there and the hybrid regime. As Bratton and Van der was political pressure on them, and they acted Walle states, in neo-patrimonial orders parallel and accordingly. There was a problem with the rules unofficial structures may well hold more power regarding the benefits due to presidents, their and authority than the formal administration.206 deputies and former holders of office. Unless they were remedied, there could be another Nkandla in Zuma and the Nkandla scandal future. Madonsela’s report also described many attempts More recently, the expensive refurbishment of to prematurely end, delay, frustrate or cancel Pres Zuma’s private residence at Nkandla has the report she released. There was the abortive been condemned by the Public Protector, Thuli November 2013 attempt by the security ministers Madonsela. The Public Protector found that the to secure what practically amounted to court- president had violated the Executive Ethics Code sanctioned censorship rights over the report. “The and acted inconsistently with the Constitution: investigation has had an unprecedented number of threats to litigate, right up to the eve of the release The earliest concerns regarding opulent or of the report.” excessive expenditure at the private residence of Pres Zuma were expressed on 04 December Madonsela wrote that, at one point, she was 2009 by the Mail and Guardian in an article dealing with seven attorneys and five advocates titled “Zuma’s R65 million Nkandla splurge”. representing various parties. “Many of these Apart from the release of a statement by the threats involved an intention to prevent the Presidency on 03 December 2009, denying that publication of the report”. In early 2013, the State government was footing the bill, nothing seems Attorney, the Chief State Law Adviser and several to have been done by government to verify the ministers “insisted” that the Nkandla investigation 2009 allegations or attempt to arrest the costs should be suspended. At other times lawyers which the article predicted would continue to acting for Pres Zuma argued that Madonsela was rise. not fit to question security measures because she is not a security expert. In one case, the Presidency It is also not unreasonable to expect that delayed the provision of information that it was when news broke in December 2009 of alleged obliged, by law, to give to the Public Protector on exorbitant amounts, at the time R65 million on request by nine months.208 questioned security installations at his private residence, the dictates of sections 96 and 237 of In May 2014, after the general elections, the the Constitution and the Executive Ethics Code government’s security cluster disclosed that they required of Pres Zuma to take reasonable steps planned to contact the High Court for a judicial to order an immediate inquiry into the situation review of Madonsela’s report. The effect would and immediate correction of any irregularities clearly be to inhibit other processes to ensure and excesses.207 accountability.209

204. http://www.sabc.co.za/news/a/2ce4430045b16971a262a390ca3f4715/Arms-Inquiry-cautions-detractors-20140310. 205. http://mg.co.za/article/2015-07-02-judge-seriti-has-left-the-building. 206. Michael Bratton and Nicholas van der Walle, Democratic Experiments in Africa (Cambridge University Press, Cambridge, 1997), p 62. 207. http://www.publicprotector.org/library%5Cinvestigation_report%5C2013-14%5CFinal%20Report%2019%20 March%202014%20.pdf, pp 5-6; 65. 208. http://mg.co.za/article/2014-03-19-madonsela-exposes-the-rot-at-the-heart-of-nkandla. 209. http://www.fin24.com/Economy/ANC-wont-change-its-spots-20140522. 56 PART V SAMonitor

On 19 April 2014, religious leaders from the Christian, In the one party-dominant system, the ruling Muslim and Buddhist faiths, including anti-apartheid ANC, previously involved in a guerrilla war (1960- icon and Archbishop Emeritus Desmond Tutu, 1990), is still permeated by a conspiratorial mind- marched to Parliament to call for the protection of set.214 Pres Zuma’s history as the intelligence head the Constitution’s Chapter 9 institutions, like the of the ANC’s military wing Umkhonto we Sizwe Public Protector, as well as an end to corruption and (MK) in exile, and his reliance on people he trusts maladministration under the Zuma government.210 from those days, also influence the ANC’s current approach. In addition, political opponents had Amnesty International has summarized the matter allegedly used covert units linked to the South in its 2014/2015 report: African Revenue Service to spy on him before he became president.215 Harassment of human rights defenders and organizations, and improper pressure Ronnie Kasrils, a founding member of MK and former on institutions, including oversight bodies, minister of Intelligence (2004-2008), responded as remained a major concern. The Office of follows to the question whether the ANC has taken the Public Protector and its Director, Thuli a reversible step towards authoritarianism, as 216 Madonsela, faced sustained pressure illustrated by the Protection of Information Bill amounting to intimidation by members of the and other initiatives of the Zuma administration: government in connection with the oversight body’s investigation and report on the improper I would think so. And I am glad to note that you use of public funds by the President at his home have not used the term “irreversible”, because in KwaZulu-Natal Province.211 my view is that we must resurrect the best values of the liberation movement. My experience A report by minister of Police, Nkosinathi Nhleko, as intelligence minister was that the security cleared Zuma from any liability. Madonsela and intelligence community were hopelessly indicated in May 2015 that the Public Protector politicised. This was made worse by a culture would challenge the report, since Nhleko is a of secrecy, paranoia, conspiracy theory and member of Zuma’s executive.212 Unaccountable authoritarianism. The Protection of Information presidentialism confirms that the political order legislation is an illustration of this. My impression has become a hybrid regime as defined.213 is that it has more to do with concealing graft and corruption in high places than with national security. Note its obsession with threats that The increased role of politicized would emanate from whistleblowers and the security services media with exceptionally heavy sentences.217 In 2014, Kasrils stated that the intelligence service The dynamics of the South African security forces had become a tool for the ruling party, and that can currently only be understood in the context officers were increasingly working for the ANC of a new hybrid system, not by reference to a full rather than for the state. However, under Zuma, multiparty democracy. the ANC executive did not act upon a report he had

210. http://www.enca.com/south-africa/religious-leaders-take-zuma-task-nkandla. 211. http://www.amnesty.org/en/countries/africa/south-africa/report-south-africa/. 212. http://ewn.co.za/2015/05/30/Nkandla-Madonsela-to-write-to-Zuma-over-Nhlekos-report. 213. http://www.dailymaverick.co.za/article/2014-09-03-op-ed-will-he-stay-or-will-he-go-now-the-great-jacob-zuma- question-of-our-time/#.VA1fN8uKC70; http://www.dailymaverick.co.za/article/2015-05-13-op-ed-the-necessity-of- debating-democracy/#.VVwFOpUcTIU. 214. See Stephen Ellis, External Mission: The ANC in Exile, 1960-1990 (Hurst, London, 2012). 215. http://www.news24.com/SouthAfrica/Politics/Sars-spied-on-Zuma-20141012. 216. The Protection of Information Bill referred to here was passed by Parliament in April 2013. However, Pres Zuma still needs to sign it. It is widely criticised as being aimed at silencing criticism against the ruling party and at discouraging whistleblowers from making information about corruption in state circles known – see Human Rights Watch’s concerns in this regard at http://www.hrw.org/news/2013/04/29/south-africa-secrecy-bill-improved-still-flawed. 217. “Q&A with Ronnie Kasrils”, Amandla, 21 October 2011, pp 8-9 (on p 9). 57 SAMonitor PART V tabled in 2008 to improve the state of affairs: abovementioned SSA. It partly wanted to avoid inter-agency competition and raw intelligence being I blew the whistle and I figured out that there “stove-piped” to leaders without any analysis. Rather were (intelligence) agents, that there were than achieving greater efficiency and coordination officers who were not working for the state but through centralisation, centralisation and the were doing ... (work) for Luthuli House … They absence of oversight increased its power in policy- don’t want to know anything about that report making. According to Ronnie Kasrils, the SSA has because they want the intelligence service to be “become totally immersed in the game of politics a tool of Luthuli House and of the president.218 and the power politics at play in this country”.221

Before the April 2014 elections, news emerged about The political heads of the security services have a group of former intelligence officers working from become key actors of Zuma’s administration.222 the eleventh floor of ANC Headquarters at Luthuli The minister of Defence, the chief of the SAPS, the House to screen ANC parliamentary and provincial minister of State Security and the head of National candidates. It was headed by Thabo Kubu, who Intelligence, the so-called “security cluster”, have also worked in the NIA. Before 1990, in exile, he worked in become difficult to call to account by Parliament.223 the ANC’s Mbokodo Security Department, allegedly involved in the torture of dissidents and detainees. Several factors are combining to securitize politics: Jacob Zuma was its deputy head from 1986 to 1993. some of these are the ANC’s non-pluralist political Kubu is listed as a director, with former NIA boss culture; the mind-set among many of its key leaders and ANC leader Billy Masetlha, in a company called formed during a guerrilla struggle; the impact of Maruapula Capital. Some candidates feared that the cadre deployment on the leadership of the security screening project, known as Project Veritas, was an forces; the increased prominence of the security attempt by Zuma’s supporters to tighten his control cluster in decision-making; and the wave of militant over the party’s caucus, and that the information strikes and service delivery protests often linked to gleaned during the screening process could be used factional politics. against them.219 The SSA was at the centre of the unauthorized According to Prof Jane Duncan, following “a bruising jamming of cellular signals in Parliament on 12 succession battle” inside the ruling ANC to replace February 2015. In March 2015, State Security Pres Thabo Mbeki in 2008, “we saw the abuse of minister David Mahlobo announced that the the intelligence services in order to advantage one intelligence service had initiated an investigation or the other political faction”. The winners took based on an unknown blog with a misspelt weblink all, but the losers have not gone away – and they and social media. The case was related to published charge that the State Security Agency (SSA) under allegations that political opponents of the Zuma Pres Jacob Zuma is politicized and out of control.220 government, such as the Public Protector Thuli Madonsela, Julius Malema, leader of the EFF, and In 2009, contrary to advice published in its own Joseph Mathunjwa, a prominent trade unionist, intelligence white paper, the government merged were CIA agents.224 five security agencies into a single agency, the

218. http://www.iol.co.za/news/politics/intelligence-service-an-anc-tool-kasrils-1.1676525#.U4id-GeKDrc. 219. http://mg.co.za/article/2014-03-27-spooks-vet-anc-candidates. 220. 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. 221. http://www.aljazeera.com/blogs/africa/2015/02/battle-intelligence-south-africa-ssa-spy-cables-guardian- security-150224170928946.html. 222. 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). 223. 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. 224. http://www.bdlive.co.za/opinion/columnists/2015/03/09/unembargoed-those-asking-difficult-questions-are-not- spies; http://www.iol.co.za/sundayindependent/spy-leaks-have-revealed-the-rot-1.1825190#.VPYGeZUcTIV; http:// mg.co.za/article/2015-03-12-still-fighting-spy-wars. 58 PART V SAMonitor

Laurie Nathan, the director of the Centre for ANC cadre deployment in the police Mediation at the University of Pretoria, saw the statement as proof that the intelligence services had become more involved in domestic politics Due to cadre deployment, key crime intelligence, than it had admitted to previously. Nathan, one of investigative and prosecutorial services are unable three commissioners in the Mathews Commission to use their constitutional powers against senior into the intelligence services, stated: ANC politicians allegedly involved in corruption, including Pres Zuma, effectively. The formal democratic checks on presidentialism in the hybrid The trend has been growing for the past regime have been neutralised. 20 years. Previously we only knew about The Directorate of Special Operations (known as it through leaks, but now they are the “Scorpions”), was formed in 1999 under then admitting it.225 Pres Thabo Mbeki. With a staff of several hundreds, it investigated Jacob Zuma and his allies on charges In 2015, SSA officials reportedly accused some of corruption before he became president. parliamentary journalists and civil society Richard Mdluli, a Zuma supporter, was appointed organisations, including R2K, of being “foreign as divisional commission of the police’s Crime agents”. AmaBhungane investigative journalists Intelligence Division effective from 1 July 2009. have complained after a revelation that Shortly thereafter, the Scorpions investigating unit communications of amaBhungane managing was formally disbanded. partner Sam Sole had been intercepted. In April 2015, the president’s attorney attached transcripts Advocate Vusi Pikoli, former national director of of these conversations to an affidavit before the Public Prosecutions, alleged in his memoirs, My North Gauteng High Court, the president’s attorney Second Initiation, that Billy Masetlha, the ANC cited these intercepted telephonic communications cadre deployed as head of the NIA, wanted to and attached transcripts of them in an annexure to forbid Pikoli from prosecuting Zuma for corruption. an affidavit in the so-called “spy tapes” matter.226 Kgalema Motlanthe, president at the time, agreed with Masetlha. Pikoli also states that the decision Factional struggles in and among the ANC, its allies to disband the Scorpions was “aimed at protecting and breakaway factions are set to continue. Some of corrupting politicians”.227 the reasons include scarcer state resources and local elections in 2016; the ANC leadership elections in The official Directorate for Priority Crime 2017; and the presidential succession and national Investigations (known as the “Hawks”), replaced elections in 2019. This trend will reinforce the the Scorpions. In 2011, the Constitutional Court securitization of politics in a hybrid regime. also found that it was “insufficiently insulated from

225. http://www.bdlive.co.za/national/2015/03/06/ssa-losing-sight-of-core-mandate-as-it-chases-its-own-tail-says-kasrils. 226. http://amabhungane.co.za/article/2015-10-26-civil-society-urges-national-assembly-to-appoint-suitable-watchdog- for-the-spies. 227. http://www.legalbrief.co.za/article.php?story=20131024121805632; http://www.iol.co.za/news/politics/zuma-sex- scandal-pikoli-speaks-out-1.1594519#.UnKfeb5gXzB; Vusi Pikoli and Mandy Wiener, My Second Initiation (Picador Africa, Johannesburg, 2013). 59 SAMonitor PART V political influence in its structure and functioning” has to answer the 782 criminal charges for fraud to fulfil its functions as an anti-corruption and corruption that may one day be reinstated investigation agency.228 The Hawks is vulnerable to against him. One thing is certain; time will tell.232 political interference as there are two processes by which its head could be removed: one through the The justice system and the judiciary minister of Police and the second by Parliament, but there is no clarification on which process is superior.229 The Hawks’ current acting head, Maj Policy documents of the ANC state unambiguously Genl Berning Ntlemeza, has been found to be that the organization wants to deploy its cadres “dishonest” and lacking “integrity and honour” for in the judiciary too. The South African judiciary lying under oath by a High Court judge.230 is still generally seen as independent and free of executive interference. However, this position is The details of the case of Crime Intelligence chief under threat. Richard Mdluli231 and the politicization and supine approach of the National Prosecuting Authority Constitutional Law experts Issacharoff and Pildes against Pres Zuma are intricate and not covered distinguish between first-order and second-order here. However, an analysis of these cases confirms approaches to constitutional judicial review. In the dynamics of a hybrid regime, not a democracy. South Africa, the Constitutional Court has tended to use a first-order approach that gives attention to those consequences of the ANC’s domination As Gareth Newman of the ISS has concluded: that manifests themselves as violations of rights. The question is why Zuma does not follow the A second-order approach to tackle the background rules that structure and result from ANC domination recommendations of the National Development 233 Plan and use his constitutionally mandated has been largely absent. powers to appoint the best possible leadership to the criminal justice system. Why does he At present, as argued by Constitutional Law expert seem to repeatedly appoint unethical and Sujit Choudry, the Constitutional Court lacks an inexperienced people to head the criminal justice adequate understanding and the conceptual tools system, and then appear content to allow chaos to question the assumption of political competition to reign despite its toll on public safety? Perhaps and alternation in South Africa’s political order. The Zuma needs to protect many of his benefactors Constitutional Court judges do not realize that it cannot rely on the risk of losing power as a strong who are involved in crime and corruption? Or 234 perhaps he believes a compromised criminal check on the ANC’s abuse of power. justice system will assist him in future if he ever

228. SAPA, Hawks law sent back to parliament, IOL News, 17 March 2011; http://www.iol.co.za/news/politics/hawks-law- sent-back-to-parliament-1.1043485; 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. 229. 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. 230. http://www.issafrica.org/iss-today/institutions-in-crisis-continued. 231. http://mg.co.za/article/2014-06-17-npa-to-reinstate-certain-charges-against-mdluli; http://www.news24.com/ SouthAfrica/News/Mdluli-not-charged-with-murder-again-20140618; http://mg.co.za/article/2015-10-23-00-top- cops-mdluli-skeleton. 232. http://www.issafrica.org/iss-today/institutions-in-crisis-continued; http://www.issafrica.org/iss-today/whither- integrity-and-independence-in-the-npa; http://www.dailymaverick.co.za/article/2014-06-01-analysis-npa-head-and- zuma-part-five; http://mg.co.za/article/2015-04-01-spy-tapes-can-hofmeyr-keep-zuma-off-the-hook; http://www. dailymaverick.co.za/article/2015-03-27-the-jiba-fracas-act-ii-down-the-rabbit-hole-with-the-npa/#.VXb0scsR672; http://www.dailymaverick.co.za/article/2015-05-31-nxasana-out-number-one-wins-again/#.VXL832PGPmS 31/5/2015. 233. 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. 234. 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. 60 PART V SAMonitor

Under Jeff Radebe as the minister of Justice, new judges, has deigned to give reasons ... legislation affecting the judiciary was introduced in 2012. According to Loammi Wolf,235 a legal A second avenue of attack is through a new academic, Radebe had been trained at Karl Marx bill that would end self-regulation of the legal University in the judicial model of the former profession. The bill, which has been passed German Democratic Republic (GDR/DDR), in the but not yet signed into law, would give the early 1980s. According to the GDR model, the government considerable influence over the Constitutional Court would be the apex ofthe day-to-day running of the legal profession. The court system. Legislation also reconstituted the government would gain the right to appoint Constitutional Court in this way. members of a new council that would oversee lawyers. It would also be allowed to dissolve In the East German model, subordinate courts the council, a power that could be used if its would not be bound by precedent, but also had members proved to be too headstrong. to adjudicate according to the directives issued by the most senior court, which in turn had to reflect Critics of the bill have included both Mr Bizos political and socio-economic policies in the state. [George Bizos, Nelson Mandela’s defender Judicial review of legislation or executive action before his incarceration] and – before he died was not permitted, as this reflected a “Western” in 2012 – Mr Chaskalson, who served as chief notion of the separation of powers. The chief justice justice under Mandela. Mr Chaskalson wrote would become directly accountable to the political that the new bill was “calculated to erode” the elite. This model is more compatible with a hybrid independence of lawyers and indirectly that of regime than a fully-functioning democracy.236 the judiciary.237

As The Economist reported on 23 August 2014: These ANC government initiatives point [C]ritics worry less about the qualifications and to a hybrid regime, not a democracy. abilities of those who have been appointed, but rather express concern that some of the Deputy Chief Justice Dikgang Moseneke and country’s best lawyers have been blocked from fellow Constitutional Court Judge Johann van der appointment. Sir Jeffrey Jowell, a South Africa- Westhuizen are due to retire during Zuma’s term born Queen’s Counsel who runs the Bingham of office. They will join Justice Thembile Lewis Centre for the Rule of Law in London, thinks that Skweyiya, who retired recently.238 several of those passed over “would simply grace the bench of any top court of any country in the The three judges were all appointed by former Pres world”. Many lawyers think they were turned Thabo Mbeki and are constitutionally required to down for being too independent-minded. retire after serving a 12 year, non-renewable term or on reaching the age of seventy. Their retirement Those suspicions have been buttressed in the few gives Zuma an opportunity to tilt the scale of the instances when the Judicial Services Commission top court in South Africa. (JSC), which recommends the nomination of

235. Loammi Wolf, “Jeff Radebe, the judiciary and the East German model”,Politicsweb.co.za , 17 April 2012. 236. 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. 237. 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. 238. http://mg.co.za/article/2014-05-08-zuma-judges-to-dominate-constitutional-court?utm_ source=Mail+%26+Guardian&utm_medium=email&utm_campaign=Daily+newsletter&utm_ term=http%3A%2F%2Fmg.co.za%2Farticle%2F2014-05-08-zuma-judges-to-dominate-constitutional-court. 61 SAMonitor PART V

Legal command and rent extraction others and extract rents, ranging from official documents and citizenship to the right to seize by ANC cadres public resources. These authorities embody the legitimacy of the state, defined in legal terms. As The international system confers a juridical a result, they can extract rents even in the absence sovereignty on states that may in practice be less of administrative efficiency, coercive capacities or absolute. Pierre Englebert states that regardless good public services.240 of the state institutions’ actual capacity, juridical sovereignty nevertheless confers legal command to The emphasis in hybrid regimes African states, defined as “the capacity to control, dominate, extract or dictate through the law”.239 shifts from “the rule of law” to “the rule by law”. Legal command offers opportunities for rent seeking and patronage to the main power holders, Even if the hybrid regime impinges significantly but also local and intermediary actors. Rather than on the civil and business rights protected by the being an instrument for limiting the state’s arbitrary existing Constitution, ANC actors are likely to use power, it becomes a tool to exercise power over justifications based on legal command.

239. Pierre Englebert, Africa: Unity, Sovereignty, and Sorrow (Lynne Rienner, Boulder, 2009), p 62. 240. 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. 62 PART VI SAMonitor

universities

The non-pluralist political culture of the ANC, which does not differentiate between party and state, is unlikely to respect the autonomy of universities and academic dissenting views. In September 2014 Pres Zuma spoke at the Progressive Professionals Forum and called on South Africa’s universities to become incubators for “patriotic citizens”.241 As indicated by the political scientist Nicola de Jager, “patriotism” has become a code word to inhibit criticism of the ANC, while critics are often smeared as being non-patriotic. 242

The minister for Higher Education and Training, , also is the leader of the SACP. History is very present in Nzimande’s speeches. In a speech in 2007, he referred to “The pessimists, those who lost their will to struggle with the collapse of the Berlin Wall”. His conclusion was different: “It is possible (and imperative) to press ahead with the socialist-oriented transformation in the present right now”.243 At a meeting of the SACP’s Central Committee on 10 December 2009, he stated: “On the education front, the SACP must throw its full weight, and where necessary lead, Part VI in the ANC campaign to transform our education system”.

On 2 October 2014, almost a month before the Universities, twenty-fifth celebration of the fall of the Berlin Wall, Nzimande stated to the South African Democratic Teachers Union: the media and The second, more radical phase of our transition would require that we transform our education and training system, including curriculum ... This would require, as Karl attempts at Marx put it, that the educators be educated themselves. The educators must be steeled in the revolutionary theory of our struggle.244 ANC control

241. http://www.bdlive.co.za/opinion/columnists/2014/09/08/zuma-patriotism-and-the-nationalist-threat-to-independent- Pressuresthought. on the autonomy of 242. http://www.kas.de/wf/doc/kas_10560-1522-2-30.pdf?070328103113, pp 15, 25. 243. Blade Nzimande, “Dual power – The living legacy of the Great October Revolution” at https://www.amadlandawonye. wikispaces.com. 244. Blade Nzimande, “Coordinated agenda to foment destabilization in SA”, on 2 October 2014 at http://www.politicsweb.co.za/ politicsweb/view/politicsweb/en/page71656?oid=738919 &sn=Detail&pid=71616.

63 SAMonitor PART VI

It is not clear whether the ANC government sent universities. The cabinet has approved the Higher congratulations to the German government Education Amendment Draft Bill, which will now be during the twenty-fifth anniversary celebrations of submitted to parliament. The bill is aimed to increase German re-unification on 9 November 2014.245 the powers of the minister of Higher Education, Blade Nzimande, to intervene in university matters Universities whose students come from communit­ of various kinds.247 The bill provides the minister ies that largely support opposition parties will with the power to “determine transformation face the greatest threat to autonomy in the next goals for the higher education system and institute five years. There has been a focused effort, for appropriate oversight mechanisms”. However, the example, to weaken the position of Afrikaans and content, procedures and legal force are unclear, Afrikaans speakers at certain schools. The same and the importance of university autonomy is pressure on the position of Afrikaans is occurring not actively recognized. The ministerial powers at the only four out of thirty-eight universities in to appoint administrators and assessors and to South Africa where Afrikaans is still being used as dissolve University Councils had been broadened medium of instruction. There are also efforts to to include such criteria as “reasonable grounds”‚ increase the ANC government’s control over these rather than the existing objective legal threshold for institutions and their discourses. This campaign this action. The minister would have the discretion has been noticeable, since many of these schools to take “any other appropriate action” should he or and universities were working well, while the she see fit to do so.248 government did not really undertake a concerted effort to also improve the majority of other less However, the ANC rulers are also under pressure functional schools and universities in the country from new constituencies, including students. The where education is in crisis. ANC will try to instrumentalize the recent wave of student protests in its effort to strengthen its hold As indicated in the World Economic Forum’s Global on universities (see Part IV). Even if it fails in co- Competiveness Report, South Africa’s overall opting these student groups at certain universities, position regarding the quality of education had both top-down and bottom-up political forces will slipped from a low 119th position in 2009 to one increase pressure on the autonomy of universities of 140th out of 144 countries by 2015. Its position in the near and medium term. in maths and science education had slipped from 246 133th in 2009 to 144th by 2015. Education 249 policy, budget strings, employment criteria and Media freedom speeches to demarcate the boundaries of political and economic research provide current means to In post-1994 South Africa, press freedom is potentially inhibit the autonomy of universities. guaranteed by Section 16 of the Bill of Rights. Together with parts of the judiciary, the media has The ANC government has created a legal base for been considered to be one the most important extending the ANC’s capture of state institutions to remaining checks on the power of the ruling party,

245. 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. 246. Klaus Schwab and Xavier Sala-i-Martin (eds), “The Global Competitiveness Report, 2014–2015”, World Economic Forum 2015, p. 341. 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. 247. http://www.sowetanlive.co.za/news/2015/11/08/nzimande-should-withdraw-draft-higher-education-amendment- bill-immediately-da?utm_campaign=shareaholic&utm_medium=email_this&utm_source=email. 248. 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. 249. This edition of the South African Monitor Report includes a detailled article by guest contributor, Prof Lizette Rabe, on media freedom. The article appears at the end of the report as addendum. 64 PART VI SAMonitor since the ANC government has largely neutralised other potentially independent watchdog institutions The government is highly sensitive to media through its policy of cadre deployment and other criticism and has increasingly encroached on measures such as intimidation. the editorial independence of the SABC. Some government critics have been barred from SABC However, it is important also to scrutinise the de programs; a number of programs have been facto realities of media freedom in South Africa.250 cancelled due to political considerations; and there is strong pressure on journalists to refrain The South African Broadcasting Corporation (SABC) 255 is the South African public broadcaster.251 It controls from critical reporting of the ANC and Zuma. most television and radio broadcasting in South Private newspapers and magazines are often critical Africa. of powerful figures and institutions and remain a crucial check on the government. However, The ANC has used cadre deployment to align the government allies own a growing share of state broadcaster with the ruling party. During the independent media. A number of key staff members 2014 elections, the SABC was criticised for refusing have left the Independent News & Media South to air the campaign adverts of two main opposition Africa claiming political interference since the parties, namely the DA, as well as the252 EFF. As company was acquired by the ANC-connected stated by Nicola de Jager, political scientist at the Sekunjalo Investments. University of Stellenbosch: There has been an increase in direct attacks on Reporters, analysts and others within journalists. These incidents have included police the public broadcaster who are harassment of reporters across the countries who have been subject to wrongful/illegal arrest, considered to operate out of line are forced to delete photographs or barred from slowly moved out, examples include entering particular spaces. In February 2015, the 253 SSA confirmed handing Mpumalanga premier Eusebius McKaiser and John Perlman. intelligence reports on the lives and movements of journalists in the province.256 The ANC’s policy of cadre deployment has also weakened the performance of the SABC.254 Freedom House’s report for 2015 mentioned that Due to cadre deployment to the regulatory body, the Independent Communication Authority of South Africa (ICASA), it has failed to ensure the non- ... concerns about press freedom have grown partisan nature of the SABC.257 The Mail & Guardian in recent years as the ANC government has reported in early May 2014 that Pres Zuma was appeared to exert increasing political pressure rumoured to be considering an information ministry on both state-run and independent outlets … based on Zimbabwean, Chinese and Russian

250. http://www.r2k.org.za/; http://fxi.org.za/home/. 251. http://www.sabc.co.za/wps/portal/SABC/SABCARTICLE?id=5c5fc9804c9afedb8cbcff39f3bc9014& page_from=CSI. 252. .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. 253. http://paperroom.ipsa.org/papers/paper_10054.pdf. 254. Gareth van Onselen, “The disintegration of cadre deployment under Zuma”, Business Day, 20 October 2014. Also see “The reason for our lack of delivery” (editorial), Financial Mail, 31 October 2014. 255. https://freedomhouse.org/report/freedom-world/2015/south-africa#.VUNBD5UcTIU. 256. 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. 257. 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). 65 SAMonitor PART VI models, with the intent to reshape the image of “they don’t do their own research”; “they don’t his administration, also internationally.258 When investigate stories, I think they are just excited to announcing his new cabinet after the national go on [sic] internet”. He added: “it is very important elections in May 2014, Pres Zuma announced that we regulate journalists”. Pelser then asked how big a new communications ministry would be “formed the problem was. “Very big,” said Motsoeneng. “If out of components” including the SABC, Brand you check the factual of the facts [sic], really they SA, the Media Development and Diversity Agency [journalists] are always misleading.” He also stated: (MDDA), the Government Communications and Information System (GCIS) and ICASA. “Maybe we need to understand the role Industry experts and the opposition have decried of media. The role of media is to influence the government’s decision to group the public the mind-set of people, young and old. broadcaster and state communication entities under one ministry. This, they argue, raises Let’s take example [sic] — the young ones. If you concern about the independence of the SABC in always put crime on media, you report about 259 particular. The party dominance of the public crime … actually what you are doing you are broadcaster reinforces the ANC’s hybrid regime. encouraging young people to commit crime.”263 Allegations recently emerged about ANC attempts to also influence the commercial eTV television The Protection of State Information Bill was 260 service. Some ANC officials are discussing introduced in 2010 and passed by the National how the SABC could be used to promote Zuma’s Assembly.264 At present, South Africa is ranked 261 image. In February 2015 an SABC memorandum 42nd in the world with respect to press freedom of incorporation emerged that gave the minister according to the Press Freedom Index of 2014. This of Communications the power to discipline and constitutes a descent from the 38th position in the remove executive managers and board members 2010 survey.265 One of the reasons is ongoing fear at the SABC. Before the emergence of the that if the Protection of State Information Bill were memorandum, SABC board members could be to be implemented, it would infringe severely upon 262 removed only through a parliamentary process. the right to freedom of expression.266 On September 2015, SABC chief operating officer Hlaudi Motsoeneng gave an interview to Waldimar Pelser. Pelser started with a question about Potential for internet censorship Motsoeneng’s repeated calls for more regulation of the press. Motsoeneng responded with a wide The Film and Publications Board (FPB) gazetted range of generalised attacks on all South African a Draft Online Regulation Policy document on4 journalists. “I have been observing journalists March 2015. In terms of this, everything published today don’t do what they are supposed to do”; on the internet could be subjected to classification “when they report they are not factual”; “they from the FPB. Anyone wishing to publish or always take sources that are not even credible”; distribute content would first have to apply for a

258. http://mg.co.za/article/2014-05-26-propaganda-ministry-is-a-go-without-mac. 259. http://www.bdlive.co.za/national/media/2014/05/27/reconfigured-ministry-raises-worries-over-sabc. 260. http://www.dailymaverick.co.za/article/2014-10-30-op-ed-minister-patel-and-encas-feel-good-documentaries/#. VFkHgst0y71. 261. http://sa-monitor.com/anc-wants-sabc-show-jz-love-mail-guardian-27-february-2015/. 262. http://sa-monitor.com/minister-defends-sabc-secrecy-times-live-18-march-2015/#more-3351. 263. http://www.bdlive.co.za/opinion/columnists/2015/10/12/inside-the-confused-mind-of-hlaudi-motsoeneng. 264. http://www.iol.co.za/news/politics/ncop-sees-raucous-debate-on-info-bill-1.1433225. 265. http://rsf.org/index-2014/en-index2014.php. 266. http://mg.co.za/article/2011-11-22-black-tuesday-triumph-for-sa-democracy--or-its-shame. 66 PART VI SAMonitor digital publisher’s online distribution agreement In 2008, the South African National Editors’ Forum with the FPB, which would require a subscription (SANEF) citing the ANC Today Online, stated that fee. Once paid, the publisher would have to submit Pres Zuma’s newsletter, revealed a “hostile state the content to the FPB for classification prior to of mind towards the media”, and contained “wild publishing. This effectively constitutes a form of pre- generalisations encompassing the media as a publication censorship, which would undermine whole”.269 In September 2013, Zuma, in dressing the internet’s immediacy. The regulations would down South Africa’s media, called for “patriotic also allow the FPB to “dispatch classifiers to reporting”. He cited Mexico, where, he claimed, the distributors’ premises for the purposes of crime was not reported on. Even in his “victory classifying digital content”. Distributors would have speech” after the announcement of the 2014 to “ensure that the work of classifiers takes place election results, Zuma made some hostile remarks unhindered and without interference”.267 regarding the media in general.270

In March 2015, Germany and Brazil spearheaded Communications minister told a United Nations (UN) resolution calling for a UN MPs in April 2015 they needed to take further special rapporteur on privacy. The resolution action on the issue of a regulatory system for affirmed the right to privacy in the digital age and the print media so that they could achieve the expressed deep concern at meaningful transformation agenda of the country. Her comments came amid various signals from ... the negative impact that surveillance and/ within government indicating unhappiness about or interception of communications, including media coverage. This included Pres Jacob Zuma’s extraterritorial surveillance and/or interception comment that the Sunday Times newspaper’s front of communications, as well as the collection of page photo of the killing of Mozambican national personal data, in particular when carried out Emmanuel Sithole during the wave of xenophobic on a mass scale, may have on the exercise and violence had depicted the country in a bad light. enjoyment of human rights. Deputy Police minister Maggie Sotyu criticised media coverage of xenophobia and said she now The rapporteur would be appointed for three years understood why a media tribunal was necessary. to gather information on privacy-related matters ANC spokesperson Zizi Kodwa confirmed the ANC and practice and report on violations of the right was sticking to its 2007 resolution to call for a state- to privacy. South Africa and Saudi Arabia opposed controlled media appeals tribunal to regulate the the resolution. In addition, in March 2014, South media.271 Africa led a group including China, Russia and Saudi Arabia in proposing amendments to water down The most critical media sometimes reflect an the right to peaceful protest.268 Anglo-centric and pro-capitalist focus. To be very fair to Zuma, the journalists of these media may Strained relations between the ANC not always understand or try to understand politics from his vantage point: the frameworks of many and critical journalists Zulu men of his generation and socio-economic background; his political socialization as a young Although no serious incidents regarding government man and later as the military intelligence head of a authorisation to actively target journalists have guerrilla force in a brutalizing struggle; the complex been reported, the ANC’s relationship with the requirements of his political survival in a hybrid media is generally strained. regime. It is even difficult for political scientists to

267. http://mybroadband.co.za/news/internet/121528-stop-internet-censorship-in-south-africa.html. 268. http://www.dailymaverick.co.za/article/2015-03-29-analysis-whats-south-africas-anti-human-rights-game-at-the- un/#.VXbzdssR672. 269. http://mg.co.za/article/2008-01-18-zuma-is-hostile-towards-media-says-sanef. 270. http://www.dailymaverick.co.za/article/2014-05-13-analysis-zuma-vs.-the-media/#.U6bxE7mKDIU. 271. 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. 67 SAMonitor PART VI assess the real limits to the regime’s capabilities amidst growing socio-economic and demographic The impact of the media on changing challenges. political dynamics should however not

Still, such media contributions also form part of be overestimated. If the media uncovers democratic discourse. They, and various actors questionable conduct by ANC politicians, from civil society, have played an important role in it depends firstly on the ANC and its maintaining the constitutional space for freedom of the media and expression against ANC pressure. factions how it would respond to the revelations. However, it is clear that the ruling party will continue to be suspicious when it comes to media The ANC’s support to Zuma, even in the face of entities that do not align themselves with ANC considerable scandals, indicate how strong a role objectives and policies. The space for freedom of the fear of losing jobs and access to resources can the media will continue to be under pressure in play. Sometimes this fear is strengthened because the hybrid regime. Both self-censorship and more the politician or faction concerned would be independent investigative journalism by citizens unlikely to gain a similar position. These dynamics and business may be the result. limit the impact of the media and reinforce the hybrid regime.

68 PART VII SAMonitor

Increased political intervention and selective patronage

In August 2012, the Zuma government adopted the National Development Plan (NDP) as South Africa’s policy blueprint until 2030. The ANC’s national conference in Mangaung (Bloemfontein) in December 2012 endorsed the plan, which aims at boosting the economic growth rate to 5.4% of GDP and generating eleven million jobs.

However, the ANC has also proceeded with several statutes and bills that greatly increase the government’s interventionist powers and clearly prioritize the redistribution of the existing economic pie, rather than its expansion.272 In a report on all business-related legislation since 2013, the SAIRR concluded that a common thread through all the bills is that “they weaken property rights, reduce private-sector autonomy, threaten business with draconian penalties, and undermine Part VII investor confidence”.273 Recent examples include new regulations, policy initiatives and legislation regarding mining and energy, the security industry, affirmative action and The threat black empowerment, land, patents, and foreign investors in general. During their implementation, these laws are especially likely to enhance the opportunities for political and bureaucratic decision-makers to gain access to lucrative positions to property or to engage in selective patronage. Foreign business distrust and and investor limited investment

The World Economic Forum’s Global Competi­ tiveness Index (GCI) reflects the perceptions of rights domestic and international business.274

272. 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. 273. http://www.politicsweb.co.za/politicsweb/view/politicsweb/en/page71619?oid=579465&sn=Detail&pid=71616. 274. Klaus Schwab and Xavier Sala-i-Martin (eds), “The Global Competitiveness Report, 2014-2015”, World Economic Forum 2015, p 341. 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. 69 SAMonitor PART VII

In terms of the overall GCI in 2014-2015, South patronage by Pres Zuma and his entourage have Africa ranks quite well, namely in position 56 reinforced these perceptions.276 out of 144 countries measured. However, the GCI measure of South Africa’s competitiveness is Business-government relations in the past five years distorted favourably by its spectacular performance have been characterized by growing mutual distrust. in a number of the GCI’s sub-components. These There have been several large deals since 1994, include aspects strongly shaped by the private mainly in banking, retail and telecommunications, sector, like auditing standards, efficacy of corporate but South Africa has not attracted the amount boards and the availability of financial services. of foreign investments most macroeconomic measures suggest it should. Instead, South Africa’s In GCI sub-indices that measure business perceptions foreign direct investment (FDI) is volatile and of the government, South Africa fares very poorly. on average lower than comparable developing For two years in a row, South Africa has had low countries. In 2013 there was again an increase in scores for the diversion of public funds (96th) FDI. However, greenfield long-term investment and the perceived wastefulness of government remains an exception and overall FDI limited and spending (89th). In terms of the reliability of the volatile.277 police, it is in the 102nd place, and in terms of organised crime, in the 99th position. For “business Given the hybrid regime dynamics, foreign business costs for crime and violence” it is in the 133rd and local business not aligned to the ruling ANC position out of 144. This is a marked decline even are reluctant to publicly oppose harmful policies after the low position of 100 in 2009. The quality and practices. It is unwilling to jeopardize the of the educational system is very poor (140th), a government licenses they require to operate.278 marked decline, even after the low position of However, both local and foreign business have being 119th in 2009. South Africa ranks 90th in adapted the forms and extent of their investment terms of “public trust in politicians”, a further drop in South Africa accordingly. after already being 65th in 2009. It also is 120th in terms of “the burden of government regulation”, a Meanwhile, the degree of capital flight among major drop from being 65th in 2009. This decline short-term portfolio investors has recently resulted reflects the ANC’s even greater state intervention. in Central Bank warnings. Portfolio investment South Africa ranks 104th in terms of “favouritism in has helped to plug South Africa’s yawning current the decisions of government officials”, a huge drop account deficit, but is liable to dry up or reverse from being 69th in 2009.275 International media when the perceived political and business risk in reports revealing self-enrichment and selective South Africa becomes too high.279

275. Klaus Schwab and Xavier Sala-i-Martin (eds), “The Global Competitiveness Report, 2014-2015”, World Economic Forum 2015, p 341. 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. 276. http://www.bbc.com/news/world-africa-26669080; http://www.euronews.com/2014/03/20/south-africa- zuma-accused-of-flagrant-abuse-of-public-money/; http://www.nydailynews.com/news/world/south-african- president-jacob-zuma-charged-flagrant-abuse-article-1.1728390; http://www.csmonitor.com/World/Africa/Africa- Monitor/2014/0320/South-Africa-s-President-Zuma-Is-this-his-let-them-eat-cake-moment; http://www.gva.be/ nieuws/buitenland/aid1555940/zuid-afrikaanse-president-bouwt-kippenhok-en-zwembad-met-belastinggeld.aspx; http://www.faz.net/aktuell/politik/ausland/afrika/suedafrika-zumas-bad-im-feuerloeschbecken-12854377.html; http://www.nzz.ch/wirtschaft/wirtschafts-und-finanzportal/suedafrikanische-road-show-1.18252690; http://www. aljazeera.com/indepth/opinion/2014/03/south-africa-at-20-storms-behi-2014320155339545752.html. 277. Balance of Payments Manual: Fifth Edition (BPM5), (International Monetary Fund, Washington, D.C., 1993). 278. http://www.biznews.com/thought-leaders/2014/11/07/nomuras-peter-montalto-was-concerned-ahead-of-sa- research-visit-left-gloomier. 279. “South Africa’s Central Bank Warns of Capital Flight Risk” at http://online.wsj.com/news/articles/SB1000142405270 2304518704579520901590608912. 70 PART VII SAMonitor

Growing suspicion of ANC policies in ment to make it happen. Those who are close to it, “probably would not want it because they’re cosy” business circles with things as they are.

Since 2013, several ANC-directed business bills and There is a fundamental lack of acts have increased distrust and concern in foreign and domestic business circles. A headline in The understanding in government of the Economist of 27 March 2014 was clear: “Bashing way business works ... that there business for votes: New legislation may save the ANC votes but will chase away foreign investment”. are shareholders and there must be The Wall Street Journal of 9 May 2014 stated that certainty.282 the ANC envisaged a greater role in the economy, prompting the headline “South African Policies Peter Montalto, a respected foreign investment Worry Big Business”. Foreign diplomats, usually advisor, stated after visiting South Africa in reserved, have also started to voice their concerns November 2014: in private and in public.280 Shifts in BEE policy, employment equity, land According to Bobby Godsell, chairman of the lobby reform etc all are weighing significantly on group Business Leadership South Africa and a business sentiment. We continue to be upset member of the government’s National Planning that there is a lack of private sector corporates Commission, “[b]usiness and government is a standing up to government and challenging marriage that’s gone wrong, if it was ever right”. them to improve micro policy … We got the impression that the government and ANC are As leader of the Consultative Business Movement increasingly leaving out the private sector from in the early 1990s, Theuns Eloff organised the its political discourse with voters, focusing on first partnerships between business and the ANC what the government has, is and will achieve government through the National Business Initiative for individuals. The private sector is ignored and the R1 billion Business Trust. According to Eloff, politically as the only real source of wealth that trust is now all but dead and buried: creation and sustainable employment growth.283

All that these laws will do is chase business away , former South African ambassador to … What the government is proposing is exactly Argentina and previously leader of the pro-business the way Zimbabwe went over the past 10 years. opposition Democratic Party (DP), described The agenda of this government is not economic government expectations of business in April 2014: transformation. Its agenda is to create benefits for a part of the population – the upper part, It is the enemy, or at least that section of it that has the middle class upwards.281 not submitted to the government’s itch to control it.284 The business leaders who would support economic development are not close enough to the govern­

280. 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. 281. http://www.bdlive.co.za/national/2014/03/30/why-business-and-the-anc-fell-out-of-love. 282. http://www.bdlive.co.za/national/2014/03/30/why-business-and-the-anc-fell-out-of-love. 283. See http://www.biznews.com/thought-leaders/2014/11/07/nomuras-peter-montalto-was-concerned-ahead-of- sa-research-visit-left-gloomier/. Peter Attard Montalto is a London-based executive director and emerging markets economist at Japanese investment bank Nomura, responsible for South Africa and Emerging Europe. 284. http://www.bdlive.co.za/opinion/columnists/2014/04/15/anc-fights-on-against-its-worst-enemy- business?crmid=crm2. 71 SAMonitor PART VII

The ANC underestimates the degree to which the Austrian Business Chamber in Johannesburg companies have opportunities to go elsewhere that a lack of policy stability was making investors than South Africa, or it does not care too much.285 wary.289 He included inconsistencies in land reform, Arnold Goldstone, the CEO of Invicta, a major land ownership laws and agricultural development engineering industrial company, has stated that policies, BEE policies that are often challenged and South Africa has been “on the journey of a gradual inconsistent, and costly mining policies resulting in decline of industrialization” and has become investment now going elsewhere in Africa. “Past less competitive in the past four years. For many empowerment activities focused on dividing the companies, the best opportunities in mining and economic cake rather than implementing actions manufacturing are no longer in South Africa. He and activities to grow the economic cake,” Phosa stated that his company has a policy to get 50% of noted. ANC treasurer-general Zweli Mkhize later their revenues from outside South Africa as soon confirmed that policy uncertainty and a lack of as possible.286 Major companies like BHP Billiton, policy cohesion were among the reasons for a slow AngloGold Ashanti and Gold Fields Limited have growth in private sector investment.290 Thembinkosi already considered hiving off their South African Bonakele, the nation’s antitrust commissioner, assets, or have actually done so.287 stated in October 2015: According to Koos Bekker, the billionaire chairman The African National Congress is paying of Africa’s biggest company Naspers, there was too much of a sense of entitlement and comfort in very little attention to economic policy economic policy, and a lack of coordination. “We and implementation, despite the rhetoric have four or five departments within the economic cluster that do not talk to each other and have no to the contrary. Policy documents commonality in their approach.”288 alone are not sufficient to describe government policy - policy and action The former ANC treasurer general and Mpumalanga 291 premier Mathews Phosa stated on 19 May 2015 to are needed.

285. 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. 286. http://www.biznews.com/video/2014/07/29/must-watch-invicta-holdings-arnold-goldstone-true-impact-numsas- strike/. 287. 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 see http://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. 288. http://www.moneyweb.co.za/news/economy/south-africa-lacks-economy-plan-says-koos-bekker/; http://www. fin24.com/Economy/Koos-Bekker-Why-global-investors-skip-SA-20150508. 289. http://mg.co.za/article/2015-05-20-south-africas-instability-scares-away-investors-anc-stalwart. 290. http://www.bdlive.co.za/economy/2015/11/04/ministers-create-policy-uncertainty-says-anc-treasurer-general. 291. http://www.bloomberg.com/news/articles/2015-10-12/south-africa-s-anc-must-focus-on-economic-policy- bonakele-says. 72 PART VII SAMonitor

Bonakele also reported that South African Airways, freedom of speech, he asked: “It is totally under oil and gas company PetroSA Limited and the South attack”. Was there honesty and transparency in African Post Office collectively had lost more than government actions, he asked: “Please … we don’t 20 billion rand ($1.5 billion) in the past two financial have to debate that”.293 years. Eskom Holdings SOC Limited has struggled to meet demand for power, which resulted in rolling Foreign business perceptions worsen blackouts almost every second day in the first half of the year. According to a newspaper report, The Economic The sorry state of our parastatals is not just Freedom of the World Report of 2014 tracked 152 a governance problem, which I accept has countries, ranking how supportive their laws and reached crisis proportions, but its effect is institutions are with regard to certain economic driving technocrats away from these important freedoms such as personal choice, voluntary levers of a developmental state. Technocrats exchange, freedom to compete and security of are leaving the South African Broadcasting private property. South Africa continued to fall, from Corporation, the Post Office and South African 89th in 2013 to 93rd in 2014. South Africa ranks Airways in droves, and by the time we resolve the in the bottom quintile for business costs of crime, governance problems, there might be too few capital controls, hiring regulations, and minimum to rebuild these parastatals. So the incompetent wage controls; and most importantly, general size people running parastatals are not just annoying of government and its parastatals. The country because they are clueless, but because we might ranks 9th in the world in terms of government never be able to rebuild the parastatals they are consumption as a percentage of the gross national destroying. product. In 1995, South Africa ranked 42nd on the list. In 2014, it had fallen to 93rd.294 The negative global economic outlook notwithstanding, our mediocre economic There are six hundred German firms in South performance is largely of our own making, by Africa employing some ninety thousand people. commission or omission. We need mandarins Germany is South Africa’s most important trading to lead us out of this situation.292 partner after China. Nevertheless, the German foreign minister Frank-Walter Steinmeier had to Johann Rupert, the billionaire head of the contend with disrespectful breaches of protocol Rembrandt Group and Richemont, is usually quite during his visit to South Africa in November reticent on giving political commentary. He stated 2014. Spokespeople of SAFRI, a German business in a speech on 3 February 2015: People are trying association in South Africa, has expressed dismay to run a private sector (in South Africa) when the over the direction of economic policy.295 public sector is not being run properly,” he said and asked rhetorically whether there is free transfer of American Chamber of Commerce SA executive property: “[The answer is] no. Ownership incentives director Carol O’Brien stated in February 2015 that for capital formation are declining”. There was not the plethora of legislation coming out of South a strong and convertible currency. There was no Africa is causing “jitters” in US businesses with longer protection of private property. Was there operations based in the country.296

292. http://www.bloomberg.com/news/articles/2015-10-12/south-africa-s-anc-must-focus-on-economic-policy- bonakele-says. 293. http://www.fin24.com/Economy/Johann-Rupert-Honesty-in-government-under-attack-20150203. 294. http://www.bdlive.co.za/opinion/2014/10/07/south-africa-slips-further-in-economic-freedom-rankings. 295. 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. 296. http://www.bdlive.co.za/economy/2015/02/20/barrage-of-new-laws-alarms-us-firms-in-sa. 73 SAMonitor PART VII

The chamber represents two hundred and fifty of well as increasingly onerous black empowerment the six hundred US companies with operations in regulations and ownership laws, are among South Africa, such as General Electric and Google. the negative signals in this regard. SA is nota She said that the stream of legislation did not send basket case but it is on a distinctly downward a message that foreign investment was welcome trajectory.297 in South Africa. The severe power outages, weak economic growth, and the compulsory ownership The economist Mike Schüssler has also commented: element in the new broad-based BEE codes were also weighing on US companies in South Africa. The reality is that South Africa’s economic She said the negative behaviour in Parliament cupboard of ideas is empty. One top firm after had also affected economic growth because another is chasing opportunity elsewhere. parliamentarians were apparently more focused Our top 60 companies now earn 70% of their on politics than on how to grow the economy and turnover outside of SA borders. In effect, deal with South Africa’s social problems. they have left and South Africa is just another market.298 Investment by private-sector businesses has been low, not only because of excessive red tape, but also Investors’ perception of risk in South Africa has due to weak growth and low business confidence. increased. Credit-rating companies, such as Gross fixed capital formation by private businesses Moody’s Investors Service downgraded South Africa increased an annualised 0.7% in the third quarter in November 2014 to Baa2, the second-lowest of 2014 after declining 15.9% in the first quarter investment-grade level. The rand has slumped 14% and 9.3% in the second quarter. against the US dollar in the past year, while credit- default swaps have climbed twenty-nine basis Dianna Games, the CEO of a business advisory points to reach the fourth-highest among twenty- group, wrote in March 2015: four emerging and major markets monitored by Bloomberg.299 A survey conducted by the Economist Corporate Network among more than 200 CEOs, both In late 2015 the Index for Economic Freedom of local and foreign, in 25 industries across Africa, the Freedom Foundation, a think tank promoting reflects an unfortunate trend – the relative free markets, and the Canadian Fraser Institute, decline of SA as a key market of choice for Africa- indicated that South Africa had slipped from a based investors over the next five years … SA is position of 42 in 2000 to number 96 in 2013, the last suddenly seeing risks that were once regarded year in which statistics for the relevant indicators here as the preserve of other African countries – were available.300 corruption, bureaucracy, regulatory uncertainty, government interference in the economy, ANC plans to weaken property infrastructure deficits and skills shortages. rights301 As other African economies open up for business, SA is showing an increasing suspicion of foreign Under the new Promotion and Protection of investors, and foreigners in general, putting out Investment Bill of 2013 (better known as the mixed messages about how welcome they are. Investment Bill or PPIB), the rights of foreign and The new immigration and visa requirements, as domestic property owners will be much reduced.

297. http://www.bdlive.co.za/opinion/columnists/2015/03/30/sa-works-but-that-is-not-enough-to-attract-investors-anymore. 298. http://www.moneyweb.co.za/moneyweb-opinion/welcome-to-the-decline-south-africa/#.VkLfDu9ILUc.facebook. 299. http://www.bloomberg.com/news/articles/2015-05-07/riots-signal-what-is-going-wrong-with-south-africa-s-economy. 300. http://www.bloomberg.com/news/articles/2015-08-13/management-vacuum-hobbles-south-africa-s-state-owned- companies; http://www.bloomberg.com/news/articles/2015-09-17/south-african-businesses-hoard-cash-in-indictment- of-economy; http://www.bdlive.co.za/economy/2015/09/10/investment-bill-may-cause-investor-flight-eu-firms-warn. 301. The following sections of this chapter are heavily indebted to the analyses of Dr Anthea Jeffery of the SAIRR and Adv 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. 74 PART VII SAMonitor

The Investment Bill is supposed to apply equally to them to apply to it for licences to use portions of this foreign and domestic investors. land for specified periods. In these circumstances, commercial farmers would be deprived of their The current Expropriation Act of 1975 gives property, but the state would acquire it as custodian property owners the right to full compensation rather than as owner – and there would be “no on expropriation, which must include not only permanent destruction of the economic value” the market value of their properties, but also of the land, which would continue to be farmed compensatory damages for consequential loss. The by others. This means there would be no “act of act also guarantees them immediate payment of expropriation” under the principles established by 80% of the compensation due, with interest on the the Investment Bill. As a result, no compensation outstanding balance. would be payable. Under the Investment Bill, by contrast, expropriated Constitutional Court neutralized owners will receive less than market value and will have no right to damages for consequential loss. property rights clause in They will also have to wait for the state to make payment in what it regards as “a timely manner”. Constitution One danger in the Investment Bill is that domestic property owners will be confined to “just and The wording of this provision can be traced back equitable” compensation falling somewhat short of to a majority judgment of the Constitutional Court market value. An even greater danger is that such in April 2013. This ruling was made by Chief Justice property owners will receive no compensation at Mogoeng Mogoeng, an appointee of Pres Jacob 304 all. Zuma. The ruling was concerned with whether expropriation had occurred when an unused and According to analyses of senior advocate Martin unconverted private mining right “ceased to exist” Brassey and policy analyst Anthea Jeffery,302 this under the Mineral and Petroleum Resources danger stems from a key clause in the Investment Development Act (MPRDA) of 2002. Bill stating that various actions “do not amount to acts of expropriation”. According to the bill, there Judge Mogoeng found that Sebenza Property will thus be no expropriation where the state’s Limited, which used to own the coal mining right actions result “in the deprivation of property”, but in issue, had suffered a “compulsory deprivation” “the state does not acquire ownership” and “there of its right under the MPRDA. In addition, “the is no permanent destruction of the economic value custodianship” of this resource was now “vested in of the investment”.303 the state on behalf of the people of South Africa”. However, the state had not acquired ownership of This situation could arise, for example, where the the mining right. Instead, it was simply a “custodian” state takes commercial farmland under claim as or “conduit” through which “broader and equitable “custodian” for land claimants, and then invites access to mineral resources could be realised”.305

302. 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. 303. 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; http://www.politicsweb.co.za/politicsweb/view/politicsweb/ en/page71639/page71619?oid=579465&sn=Detail&pid=71619. 304. http://mg.co.za/article/2011-08-16-zuma-picks-mogoeng-as-chief-justice. 305. 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. 75 SAMonitor PART VII

The chief justice ruled that since the deprivation Disempowered foreign and South of ownership from Sebenza had not been matched by the acquisition of ownership by the state, African property owners no expropriation had taken place. It followed that no compensation was payable. Echoing this Once the Investment Bill becomes law, government judgment, a key provision in the Investment Bill could use its rules to take further measures to vest states that various actions “do not amount to all mining land, mining equipment and other mining acts of expropriation”. Among the actions it lists assets in the state as the custodian of the nation’s are “measures which result in the deprivation of mineral resources. Simultaneously, it could invite property, but where the state does not acquire black-owned businesses in particular to apply to the ownership of such property”. Department of Mineral Resources for a licence to use a portion of these assets for a specified period. When Chief Justice Mogoeng handed down the If past experience is any guide, the businesses that ruling on Sebenza’s rights, two judges of the benefit would usually be tied to supporters of the Constitutional Court, Johan Froneman and Johann ANC, and not to political opponents of the ANC. van der Westhuizen, disagreed with the majority’s conclusion that no expropriation had taken place. Similar measures, intended to generate a similar They also cautioned against the implications of outcome, could be taken as regards all other Judge Mogoeng’s ruling. According to the judges, “investments” covered by the Investment Bill. the ruling could lead to “the abolition of the private These are broadly defined to include companies; ownership of … all property” without the payment equities; land; movables; and intellectual property; of any compensation. “Any legislative transfer of along with mining rights and similar “licences, property from existing property holders” would no authorisations, or permits … to carry out economic longer be “recognised as expropriation” if it was and commercial activities”. Moreover, the “done by the state as custodian of the country’s Investment Bill applies equally to domestic and resources”, they said. The warning sounded by these foreign investors, for the need to ensure equal judges could become a reality if the Investment Bill treatment for both categories of investor is a key were to be enacted into law in its current form.306 theme of the measure.307

During the consultation about the Mineral and The bill’s reference to “investors” is also misleading, Petroleum Resources Development Amendment for it suggests that the new law will apply solely Bill of 2013 (also known as the “Mining Bill”), to companies and other commercial enterprises. the state petroleum company PetroSA used the In fact, the Investment Bill will apply to everyone, Constitutional Court case to propose further including “natural persons” and “regardless of amendments. In its written submission, PetroSA nationality”. Any South African who owns a home; suggested the bill should designate it the custodian car; or unit trusts is vulnerable to the Investment over all of South Africa’s allocation of petroleum Bill’s provisions. So, too, are enterprises of every rights. It also argued that where the rights to an size and in every sector of the economy, from oil block are relinquished, abandoned, lapsed or mining to agriculture, banking, manufacturing, and cancelled, PetroSA should be granted first right of services. refusal over the acreage or be allowed to determine its commercial value, before it could be released for bidding in the market.

306. 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. 307. 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. 76 PART VII SAMonitor

Once the Investment Bill is in place, the current The bill gives the minister of Mineral Resources Expropriation Act is likely to be overtaken or unprecedented discretionary powers in many repealed. Instead, all South Africans will find that spheres, and threatens mining companies with their rights on expropriation are already governed maximum fines exceeding 10% of annual turnover, by the rules laid down in the Investment Bill.308 plus jail terms of up to four years, for failing to fulfil The bill will give the state the power to take the ambitious demands laid down in the revised measures to acquire property of virtually any kind mining charter of 2010. as “custodian” for the poor, and without the need to pay any compensation. The Mining Bill gives the state a 20% “free carried interest” (or free stake) in all new ventures of this The new Preservation and Development of kind. It “entitles the state to a further participation Agricultural Land Framework Bill of 2015 was interest” of an unspecified percentage, to be gazetted in March 2015 for public comment. It attained either via “acquisition at an agreed price” would also provide that state the power to take or through a “production sharing agreement” measures to acquire any property as “custodian” obliging the petroleum company in question to for the poor. The Bill diminishes ownership rights “share ... the extracted resource” with the state. over agricultural land in various ways. Many of the powers that owners now have are effectively An earlier version of the bill put this additional transferred to the minister of Agriculture, Forestry, interest at 30% and expressly limited the state’s and Fisheries, acting in conjunction with a host of potential stake to a maximum of “50% per new bureaucratic bodies.309 The author of the bill is petroleum operation”. Now, the state can demand Senzeni Zokwana, who is both the current minister as much as an 80% additional share, over and of Agriculture and chairman of the SACP.310 above its 20% free share.

In February 2015, Pres Zuma announced a Oil and gas companies will find it difficult to Regulation of Land Holdings Bill, which looks to negotiate an accurate price. They will be required to ban land ownership by foreign nationals. Local pay 100% of the costs of developing new projects, landowners are also mentioned in the bill, which but will receive only 80% of the profits. This means puts a 12 000 hectare land ownership ceiling on that only projects that can fund the government’s them.311 20% free ride will be developed.312 Creeping state ownership in the Business Day, the premier business publication in South Africa, commented as follows on 31 March mining and energy sectors 2014:

The Mineral and Petroleum Resources Development The government’s right to increase its stake Amendment Bill of 2013 (the Mining Bill) was to 100 per cent of a project is much more approved by the National Assembly in March 2014. damaging. Oil, gas and mining companies The Mining Bill also applies to offshore oil and gas spend large sums of money exploring for new exploration and production. deposits. They do so believing these costs can

308. “A new Expropriation Bill by another name”,Liberty , 25 February 2014, p 5; http://www.bdlive.co.za/opinion/ columnists/2014/04/07/on-the-money-mining-bill-terrible-for-new-entrants; http://www.bdlive.co.za/business/ mining/2014/03/16/new-mine-law-may-cost-sa-billions; http://www.mining.com/south-africa-approves-law-that- gives-state-a-20-stake-in-oil-mining-firms-29312/; http://www.miningweekly.com/article/top-lawyers-warn-of- mining-bills-devastating-consequences-2013-09-13. 309. For an overview of current challenges in the sector, see http://www.iol.co.za/business/news/farm-report-warns-of- serious-problems-1.1845285#.VS9wmpUcTIV. 310. http://www.biznews.com/thought-leaders/2015/05/27/irrs-anthea-jeffery-state-custodianship-and-control-over-all- agricultural-land/. 311. http://today.moneyweb.co.za/article?id=479711&acid=Z254vWXulCUeZeuwhd4cWQ%3D% 3D&adid=O%2F1Pa14Ya 9UeZeuwhd4cWQ%3D%3D&date=2015-06-04#.VW_6H5Uw_IU. 312. http://mg.co.za/article/2013-09-13-experts-stakeholders-grill-proposed-changes-to-mining-laws. 77 SAMonitor PART VII

be recouped when profitable projects are During consultations regarding the bill, ESKOM, the found and developed. Because it is difficult to struggling state-owned electricity company, made accurately predict how much gas or minerals submissions that argued that coal be declared can practically be extracted, some projects are a strategic mineral and that coal exploration much less profitable than expected. and mining rights should be awarded giving due consideration to “domestic coal supply power Successful companies can absorb these costs generation”. ESKOM wanted the bill to ensure because the profits made from very successful that it and other state utilities be given first right projects more than offset the earlier costs. If of refusal “on large coal resources, which were they do not, shareholder funds will have been previously earmarked for domestic use”. The wasted. minister of Mineral Resources, Ngoako Ramathlodi, is considering the reclassification of coal and ore as But the Mineral and Petroleum Resources strategic resources.316 Development Amendment Bill allows government to “cherry-pick”, forcing producers The National Water Act of 1998 already made the to sell all of their most profitable projects ANC government the “public trustee of the nation’s to the government. They must do this at an water resources”. ANC attempts at other forms “agreed price” rather than a market price. of creeping expropriation can be expected in the This means companies can never recoup the hybrid regime in the next decade. costs of exploration or of unprofitable projects. The consequences are obvious. Under such In addition, the government has approved the conditions companies will not explore in South policy to create more than 100 black industrialists Africa. Nor will they develop projects they know within three years in an effort to revive the sector. the government will nationalise. 313 The Industrial Development Corporation would spend R23 billion to fund these industrialists in According to the Mining Bill, the minister of Mineral the next three year timespan. The state will help Resources may also declare specified minerals to be black-owned manufacturing companies access “designated” or “strategic”. Strategic minerals may finance and markets, develop skills, and improve be subjected to both export and price controls. The quality and productivity, according to the scheme’s bill empowers the mining minister to demand the outline. It remains to be seen to what extent this beneficiation of a prescribed percentage of mineral policy’s implementation does not address needs products at “mine-gate” or “agreed” prices. in the poorer communities, but rather reinforces Agreement on prices may not be easy in practice existing patterns of crony capitalism.317 to achieve.314 The weakening of foreign investor An export licensing system is effectively introduced through Section 21(d) of the Mining Bill. It states protection that no one may export “designated” minerals or petroleum without permission from the minister, The new powers given to the state under the Mining and subject to conditions. Designated minerals Bill could amount to indirect expropriation under may not be exported, unless producers first supply the bilateral investment treaties (BITs) South Africa the proportions prescribed for local beneficiation. signed with some thirteen European nations after This means they can be directed away from their 1994. The provisions also potentially contravene most profitable use as ministers see fit. The criteria South Africa’s bilateral investment treaties, that will govern such decisions are not clear.315 particularly the treaty between South Africa and

313. http://www.bdlive.co.za/opinion/columnists/2014/03/31/a-hard-ask-for-business-to-criticise-government. 314. “Mines uneasy about government’s strategic minerals labelling”, Business Day, 28 August 2013. 315. “Mining bill shows us where we stand”, Business Day, 9 November 2014. 316. “South Africa considers declaring certain minerals as ‘strategic’”, 14 October 2014. 317. http://www.bdlive.co.za/business/2015/11/05/cabinet-approves-policy-to-promote-development-of-black- industrialists; http://www.bdlive.co.za/business/trade/2015/09/16/definition-of-black-industrialist-is-strict. Also see http://www.bdlive.co.za/national/2015/10/22/state-seeks-stronger-control-over-its-entities. 78 PART VII SAMonitor the UK. This treaty requires, among other things, South Africa is Germany’s most important trading that South Africa and the UK afford investors and partner on the African continent. The response of their investments “fair and equitable treatment”. the Southern Africa Initiative of German Business to This obliges South African public authorities to act the cancellation encapsulates the key objections of transparently, reasonably and without ambiguity. foreign business to the policy:

According to major South African law firms like 1. Compared to the terminated BIT the Promotion Webber and Wentzel, South Africa will be in and Protection of Investment Bill (PPIB) does breach of a BIT where it has failed to protect not provide a guarantee for the fair and investors’ legitimate expectations to rely on the equitable treatment of foreign investment. host state’s earlier commitments, in that it has not Changes in the legal framework conditions to provided a predictable regulatory framework for the disadvantage of investors are possible at investments. These provisions could also be deemed any time and might have the effect that both unconstitutional, under Section 25, which protects the investment protection and possible claims against the arbitrary deprivation of property.318 for compensation are cancelled. 2. According to the wording of the bill the legal The proposed amendments permit interference protection of investments only comprises such with mining companies’ right to the use, enjoyment cases in which there is a direct expropriation. and exploitation of the minerals they have extracted, Measures having an equivalent effect to and thus constitute a deprivation. As there isno expropriation are, however, not comprised so legal constraint on the minister’s discretion or clear that in such cases – contrary to the BIT – a rules of procedure in this regard, the deprivation is claim for compensation is not provided for. arbitrary and potentially unconstitutional. 3. In contrast to the BIT compensation The Department of Trade and Industry (DTI) is payments in cases of expropriations can now busy unilaterally terminating these treaties. be below market value, as the basis for any The ANC government states that the BITs limit decision is the general provision of fair and the country’s sovereignty and play little part in equitable compensation, which reflects the attracting direct investment. The government also consideration of both public interests and the claims that the international arbitration to which interests of the parties concerned, and not foreign investors are entitled under these treaties the market value. yields unpredictable and often unfair results – and 4. The PPIB envisages the recourse to national that foreign investors will be adequately protected arbitral jurisdiction and arbitral tribunals, by South Africa’s own courts. whereas the access to international arbitral tribunals is neither explicitly mentioned nor However, representatives of the European Union (EU) allowed. However, for international investors, have broken their usual diplomatic silence to state the objective and neutral settlement of their opposition. Where treaties are terminated, disputes according to international law is an the foreign investors currently protected by them important element in investment decisions.320 may have no remedy against damaging policy changes of the kind contained in the Mining Bill. They are also likely to receive less than the “prompt, Foreign companies may in fact receive zero adequate and effective” compensation promised by compensation if a taking of property by the state the treaties.319 is not recognised as an “act of expropriation”

318. http://mg.co.za/article/2013-09-13-experts-stakeholders-grill-proposed-changes-to-mining-laws. 319. 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. 320. Southern Africa Initiative of German Business,South Africa: New Legal Framework for Direct Investments, 2014, pp 1-2 at www.safri.de. 79 SAMonitor PART VII under the PPIB of 2013. The survival clauses in the Settling these claims could cost the state an estimated agreements now being terminated were supposed R179 billion, yet in the 2013/2014 financial year, the to protect existing investments for between ten and restitution budget was roughly R3 billion only. It is twenty years after the relevant agreements had unclear how the government will find the money come to an end. However, this bill is also to have to settle all these new claims. However, if the state retroactive operation, in an attempt to bypass the takes land under claim as a “custodian” for land “survival” clauses in the treaties. claimants, there will be no expropriation flowing from this deprivation, and hence no compensation Stefan Sakoschek, the executive director of the EU to be paid. Chamber of Commerce in SA, told parliamentarians during public hearings in September 2015: The new land claims lodged under the Restitution Bill could extend far beyond agricultural land. The We are aware of a number of projects that deputy chief land claims commissioner, Thami are pending due to the degree of uncertainty Mdontswa, stated in September 2013 that “people related to the investment framework. As we might think, ‘Hey, there’s a coal mine out there, speak, some of our members are investigating let me place myself within its reach [by lodging] a other destinations such as Namibia, Nigeria and claim’”. Kenya for their regional African operations. The current bill promotes discomfort, leading to As a result, the SAIRR has stated that the Investment discouragement related to new investments. Bill, in combination with the Restitution Bill, could “spell the end of private property rights in South The chamber was concerned that the bill did not Africa – not just in agriculture but across the offer the same treatment to all classes of investors, economy”. and gave inadequate protection. We believe that the Government and the ANC are The withdrawal of SA’s (bilateral treaties) with preparing the ground to seize private property EU member states has sent an alarming message and distribute it to poor communities if and to the EU business community regarding the when they feel the need to do so. That time will standard of protection of investments. The new come when the political pressure on the ANC is bill does not sufficiently allay those concerns.321 so great that it fears losing a future election.322

In a recent report entitled South Africa: Monitoring The Investment Bill in the context of the Cabinet, Election Promises and Legislation, Credit Suisse warns that the new Bill “undermines the Restitution Bill property rights, a cornerstone in a market-driven economy, and discourages investment in fixed The Investment Bill also needs to be read in the capital”.323 Credit Suisse analysed it as follows: “Any context of the Restitution of Land Rights Amendment property can be expropriated by the minister in the Bill of 2013 (better known as the Restitution Bill). The ‘public interest’, and for redistribution purposes. Restitution Bill extends the deadline for lodging land Any possible compensation would occur at a level restitution claims from December 1998 to December determined by Government and would not reflect 2018. In this extended period, some 379 000 new the market value of said property.” land claims are likely to be submitted, according to the government’s regulatory impact analysis. Some 8 000 existing claims have yet to be resolved.

321. http://www.bdlive.co.za/economy/2015/09/10/investment-bill-may-cause-investor-flight-eu-firms-warn. 322. “A new Expropriation Bill by another name”,Liberty , 25 February 2014, p 5. 323. http://www.politicsweb.co.za/politicsweb/view/politicsweb/en/page71619?oid=700844 &sn=Detail&pid=71619. 80 PART VII SAMonitor

Increased state ownership and and Constitutional Development in the National Council of Provinces in February 2014. The letter control of the lucrative security stated that foreign equity caps would violate South Africa’s commitment to unbounded market access industry under the General Agreement on Trade in Services (GATS) – a World Trade Organisation treaty to which The Private Security Regulation Amendment Bill South Africa is a signatory.325 of 2013 (alias the Security Bill) was adopted by Parliament in February 2014 and is soon to be The delegation’s letter also stated that the cap signed into law. A provision reintroduced in the would contravene bilateral investment treaties. closing stages of the parliamentary process requires For example, the agreement between South Africa that “at least 51% of the ownership and control” and the United Kingdom obliges the South African of security companies must be “exercised by South government not to impair the investments of British African citizens”. Foreign-owned companies will be nationals or companies. forced to sell 51% of their shares to South Africans.

According to the Security Bill, the disposal of The government should not any excess shareholding is to be carried out “in offer treatment less favourable accordance with” the Investment Bill. The clause on expropriation speaks of a minimum of 51% local than what it accords to its own ownership, but leaves it up to the minister of Police nationals or companies. to decide on a higher figure. Both the South African Chamber of Commerce and Industry (SACCI) and In addition, the investments of British companies the Security Industry Alliance (SIA) have requested “shall not be nationalised, expropriated or Pres Zuma not to sign this bill.324 subjected to measures having effect equivalent to nationalisation or expropriation”. Government says that the 445 000 guards employed by the industry far outnumber the country’s 270 000 The American ambassador to South Africa, Patrick policemen and soldiers, making foreign control of Gaspard, also wrote a letter dated 28 February 2014, security companies a threat to national security. warning that the ownership requirement would However, the guards in fact employed by foreign violate South Africa’s GATS commitments. Gaspard companies number fewer than 45 000. The growth said almost all security technology is manufactured of the private security industry is directly linked to and distributed by international companies like high levels of crime and violence, as well as public Bosch and Sony, and “the proposed amendments perceptions that the government in general and the could compel many of these companies to divest”.326 police specifically are unable to provide adequate In March 2015, the minister of Police, Nathi Nhleko, security. stated that the South African government would withdraw from its commitments to the World Trade In response, Axel Pougin de la Maisonneuve, the Organisation’s (WTO’s) General Agreement on Trade head of Economics and Trade at the EU delegation, in Services to consult member countries on the addressed a letter to the ANC chief whip and the Amendment Bill.327 chairperson of the Select Committee on Security

324. .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. 325. http://mg.co.za/article/2014-04-10-private-security-bill-spells-trouble. 326. http://mg.co.za/article/2014-04-10-private-security-bill-spells-trouble; http://www.issafrica.org/iss-today/are- foreign-owned-private-security-companies-a-threat-to-south-africas-national-security; http://www.economist.com/ news/middle-east-and-africa/21600176-some-recent-business-bills-pander-populists-deterring-foreign-investors- why. 327. http://www.bdlive.co.za/business/trade/2015/03/20/sa-to-withdraw-from-world-trade-organisation-agreement; http://citizen.co.za/354079/bill-threatens-trade/#.VRnTM7AlOSM.mailto. 81 SAMonitor PART VII

ESKOM and the ANC’s power failure technical ability but the external political and ideological pressure that has slowed the process and put the June deadline in question. As ever, The ANC government did not invest enough in the government seems to have too much time. expanding its power generation capacity and The knowledge to solve the ESKOM problem neglected maintenance. It also did not respond is already within the government. Remove the after earlier crises. ESKOM, which supplies about politics, the tenderpreneurship and the cadre 95% of the nation’s electricity, is since 2015 deployment.330 rationing supply because its aging plants cannot meet demand. ESKOM is implementing almost daily rolling blackouts as it struggles to meet “Our turn to eat” demand. These measures are having a huge impact on productivity and also business morale in South The prominent economist Moeletsi Mbeki has Africa. Dawie Roodt, chief economist of Efficient stated that the only agenda of the ANC currently Group Limited in Pretoria, estimates the electricity is “it is our turn to eat”.331 Anthony Butler, a crunch since 2007 has cost the economy more than political scientist at the University of Cape Town, R300 billion ($25 billion) in lost output.328 has analysed how short-term political and personal interests are shaping the economic policies: The sectors using the most electricity are also the foreign exchange earners, namely nonferrous Take the energy sector. Here, there are three metals; basic iron and steel; non-metallic minerals; indications that present-day elite gain is being mining; paper and paper products; and chemicals. privileged over society’s longer-range interests. The budget statement that only low-import and First, there has been apparent acquiescence to electricity-light sectors will be supported over the ANC’s proposal to reach deep into the R1,2- the medium term means support for tourism; trillion Government Employees Pension Fund agriculture; agro-processing; light engineering; and to recapitalise ESKOM, so potentially robbing services. According to Henk Langenhoven, the chief tomorrow’s pensioners. economist of the Steel and Engineering Industries Federation of Southern Africa, “[t]his approach Second, the international shale gas industry can spell only doom for reindustrialisation and appears to be successfully lobbying the beneficiation”.329 government for a special dispensation that will enable fracking to go ahead in spite of The World Bank in April 2015 urged the ANC uncertainty about its longer-term environmental government to urgently address electricity and economic consequences. shortages, saying the damage to the economy should not be “sugar-coated”. According to Peter Third, the government plans to finance nuclear Montalto power generation by imposing debilitating electricity costs on future consumers. Such costs The problem is not primarily capacity – the are not just a distant menace, of course, because Treasury and the Department of Public anticipated price rises will quickly discourage Enterprises have enough technical policy, investment and undermine confidence in SA’s analytic and legal capacity to be able to turn future creditworthiness. the situation around. The problem is not its

328. http://www.bdlive.co.za/opinion/2015/04/14/eskom-lies-will-continue-over-ideology. 329. http://www.bdlive.co.za/economy/2015/04/14/get-a-grip-on-power-supply-sa-warned. 330. http://www.bdlive.co.za/opinion/2015/04/14/government-knows-eskom-solution-but-lacks-resolve. 331. Andrew England, “Power failure”, Financial Times, 13 May 2015, p 7. 82 PART VII SAMonitor

The real price of nuclear power will also will be R157.9 billion (thousand million). The deficit depend on who absorbs the risks. An opaque will be 3.8% of the GDP. Foreign lenders disagree procurement process run by short-termist and think the deficit will be worse this year, at 3.9%. actors will not allow the allocation of future Under Pres Zuma’s administration, the national risk to be appropriately scrutinised. The debt has grown so much that it costs R128 billion a immediate beneficiaries of a nuclear deal (other year in interest payments alone. Without sufficient than French, Chinese or Russian governments new wealth-generating activities, investment, peddling mostly redundant technologies) will savings and productivity, a risk of insufficient state be South African political brokers, the owners of income is looming. “offset” and “domestic content” companies and fronts, and what Sports Minister Research by Prof Jannie Rossouw in this regard, might describe as “approved recipients” in the is instructive. Rossouw, currently head of the ANC’s internal “diaspora legacy programme”. University of the Witwatersrand’s School of Economics and Business Sciences and previously This is all very bad news for the poorest 40% of serving for 27 years at the South African Reserve citizens, who will continue to languish in poverty. Bank, has concluded that “a continuation of the But it is also bad news for what Prof Brian Levy recent growth trend will crowd out other public- and others have described as SA’s “missing sector priorities”. Rossouw and co-researchers middle”. Below the top 20% of earners, there is Adele Breytenbach and Fanie Joubert refer to an a “distributional cliff” that leaves the next 40% approaching fiscal cliff, “the danger that the South of the population unusually impoverished when African government might run out of income to compared with their peers in otherwise similar cover growing government expenditure”.334 developing countries.332 Social grants and state jobs together would account Patronage and the emptying state for all government revenue by 2026 – just a dozen years away, assuming high average annual revenue coffers growth of between 9.7% and 9.9% between 2012 and 2013. It is currently at 1% per year. Even sharp After more than twenty years, the state sources to increases in personal tax, company tax, fuel levies satisfy important actors and constituencies have and excise duties would merely defer the fiscal cliff declined. The ANC’s policies have included the for two or three years. overuse and abuse of civil service employment, in conjunction with profligate spending, corruption The public commentator and former editor of the and extreme consumption. South Africa has seen anti-apartheid weekly Vrye Weekblad, Max du its government debt rise from of 27.3% of GDP in Preez, summarized it in 2014: 2008/2009 to 45.8% of GDP in 2013/2014 and is projected to rise to 48.3% of GDP in 2016/2017. In Zuma’s first four years in power, the salary South Africa’s total debt to foreign creditors has bill for civil servants rose 76%. For every R100 increased by 250% in the past decade.333 The generated by our economy, R14 goes to paying minister of Finance has stated that total national bureaucrats. This makes our civil service the debt will increase by a massive R600 billion in the most expensive in the world. In Russia this figure next three years. is R3.70, in Brazil R4.60 and in Nigeria R4. Some 17 million people now get social grants from In the 2015/2016 financial year, revenue, mainly the state, costing us more than R390 billion. from taxes, will be R1.07 trillion (thousand billion). Combined, welfare payments and public service Spending will be R1.24 trillion. The budget deficit salaries consume 56.4% of all state revenue,

332. http://www.bdlive.co.za/opinion/columnists/2015/06/05/conceiving-a-positive-future-for-sa-difficult. 333. “A guide to SA’s economic bubble and coming crisis”, Forbes, 19 March 2014. 334. 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. 83 SAMonitor PART VII

leaving just 43.6% for everything else that has increases for the next two years. This decision will to be done in this country. That is madness … reinforce the trends described above.337 Political The government and the ANC don’t have the pressures to raise extra income for the ANC, political guts to limit civil service pay hikes to the its cadre networks in the state structures and inflation rate, because they don’t want to annoy key constituencies will increase in the next five the trade unions.335 years.338 Intense factional competition in the ANC and its allies, and between the ANC and breakaway As Montalto noticed recently: political or politicized opponents like the EFF and NUMSA, will reinforce these dynamics.339 Our meetings with the unions and others suggest that central government employment The ANC government will try to raise extra income in level freezes may very well be possible, but that the form of taxes, including road tolls; regulations; significant “stuffing” of posts is expected into licence fees; and other means. Business may the 2016 local elections at the municipal and be expected to take on new obligations usually provincial levels, in addition to continued use fulfilled by the tax-funded state. Business will of public works employment programmes (an often have difficulty in establishing whether extra expanded form of unemployment benefit) into state revenue is actually spent on improving the the same elections.336 infrastructure or conditions of all citizens, or on subsidizing the ANC’s patronage and reinforcing its one-party dominance in a hybrid regime. The government in May 2015 agreed to a 7% increase in civil servant salaries for this year, with similar

335. http://today.moneyweb.co.za/article.php?id=790143&cid=2014-11-06#.VFs_D5UcTIU. 336. http://www.biznews.com/thought-leaders/2014/11/07/nomuras-peter-montalto-was-concerned-ahead-of-sa- research-visit-left-gloomier/. 337. http://www.bloomberg.com/news/articles/2015-05-20/south-africa-agrees-to-wage-deal-averting-civil-servant- strike. 338. See for example http://www.bdlive.co.za/business/mining/2015/05/18/chamber-of-mines-comes-to-members- defence. 339. http://today.moneyweb.co.za/article?id=466373&acid= Z254vWXulCUeZeuwhd4cWQ%3D%3D&adid=CxgRuNO6fq MeZeuwhd4cWQ%3D%3D&date=2015-04-22#.VXbCkssR673. 84 PART VIII SAMonitor

South Africa’s foreign policy has clearly pivoted to China and Russia during Jacob Zuma’s presidency. This policy differs sharply from the more balanced multipolar approach under Nelson Mandela’s presidency.

A Better Africa in a Better and Just World, a discussion document of the ruling ANC in 2015, reflected this shift.340 It formed the basis for foreign policy discussions at the ANC’s policy- making National General Council in mid-October 2015. Such discussion documents are often an early indication of ANC policy directions in the next five years. 341

The text of the discussion document on Part VIII international relations was drawn up by a panel of foreign policy heavyweights chaired by the deputy minister in the Presidency, . Other members of the panel included such foreign policy Foreign policy heavyweights as Zuma’s ex-wife, African Union Commission Chairperson Nkosazana Dlamini- Zuma; minister of International Relations and Cooperation, Maite Nkoana-Mashabane; minister pivots to of Trade and Industry, ; former director- general of the NIA, Billy Masetlha; and the former national commissioner of Police, Bhekokwakhe China, Russia “Bheki” Cele. Looking to China for symbolic and and anti- economic leadership Due to political factionalism and economic policy failures, the ANC has become more reliant on foreign patrons. The shift in foreign policy also Western coincides with the shift to a hybrid regime under Zuma’s ANC. The ANC leadership has come to view China’s Communist rulers as their example. A Better Africa, the ANC policy discussion rhetoric document, concludes:

340. 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”. 341. 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. 85 SAMonitor PART VIII

per year. The USA comes third. Many countries also China [sic] economic development trajectory trade profitably with China while remaining close remains a leading example of the triumph of to the USA or the EU. humanity over adversity. The exemplary role of the collective leadership of the Communist Thus, South Africa’s foreign policy shift reflects a Party of China in this regard should be a guiding 342 geopolitical and domestic political reorientation. lodestar of our own struggle. Pres Zuma and Pres Vladimir Putin of Russia attended China’s victory parade on 3 September The ANC claims, in language that even Chinese 2015. The parade celebrated the 70th anniversary government media does not use nowadays, that of Japan’s surrender at the end of the Second World War. The leaders of the USA, Japan and the UK said ... the US, backed by its ideological they would not attend, as they were concerned about a show of military force at a time of regional apparatus, has tried a repeat of the tensions. Tiananmen Square against the Chinese The ANC persists in seeing Chinese state capitalism government by parading to the world as its model for a developmental state. This remains counter revolution as a popular uprising the case despite South Africa’s strong private sector and despite bad governance of its parastatal and counter revolutionaries as human companies weakening the economy even further at rights activists.343 this stage. A “five- to ten-year strategic programme” between China and South Africa, signed during China is now South Africa’s top trade partner with a visit to China by Zuma in 2014, laid out specific 21.9 billion, compared to $6.0 billion with the US, aims on cooperation on state-owned enterprises. $4.7 billion with Japan, and $4.1 billion with the Higher-level executives at South African state- UK and Germany each. According to Mills Soko,344 owned enterprises (SOEs) will be educated at the political economist at the University of Cape Town’s Chinese Academy of Governance in Beijing.345 Graduate School of Business, the ANC government is treating China as a unique strategic partner: Already, many new ANC laws, bills and regulations to gain more government resources have The government’s refusal to raise tariffs on affected or will affect water, coal, steel, minerals, cheap steel imports from China suggests that it agriculture and other economic sectors. The ANC will prioritise its relationship with China at the is establishing a Political School and Policy Institute expense of domestic interests. at Venterskroon in South Africa in cooperation with the Chinese Communist Party.346 The ANC Trade with China is important. However, trade with government also has already signed a deal with 2 000 companies from the European Union as a bloc the Chinese government on cooperation related to remains the most important, valued at $28 billion internet infrastructure and cyber-security.347

342. African National Congress NGC 2015 Discussion Documents,http://www.anc.org.za/docs/umrabulo/2015/ngc_disc_ docsy.pdf, p 161. 343. African National Congress NGC 2015 Discussion Documents,http://www.anc.org.za/docs/umrabulo/2015/ngc_disc_ docsy.pdf, p 162. 344. http://mg.co.za/article/2015-08-22-sa-and-china-a-love-founded-on-state-control. 345. http://mg.co.za/article/2015-08-22-sa-and-china-a-love-founded-on-state-control. 346. http://time.com/3601968/anc-south-africa-china-communist-party/; http://www.newstatesman.com/ politics/2015/01/why-anc-following-example-chinese-communist-party. 347. http://www.cpifinancial.net/news/post/31624/south-africa-and-china-sign-ict-plan. 86 PART VIII SAMonitor

How will these events impact on South Africa’s political system? They occurred while Western Choosing Russia against “US- powers widely criticize the Chinese record on sponsored destabilisation” political pluralism and its limiting of citizens’ access to “undesirable” news from the outside and social Both domestic and foreign considerations play a 348 media. After protests in the Ukraine, Turkey and role in the ANC’s policy towards Russia. Business Venezuela, the UN Human Rights Council brought a Day editor Peter Bruce speculated in 2013 that the resolution in 2014 to safeguard the right to peaceful ANC’s financial troubles would probably result in protest. In March 2014, South Africa led a group the party returning to its dependence on foreign including China, Russia and Saudi Arabia in proposing funders, especially among non-Western powers.351 several amendments to water down the resolution, In 2014, reports emerged that the ANC was broke. which prompted criticism from the UK representative The ANC denied the reports.352 in Geneva and from Human Rights Watch.349 During the same period, news emerged of a Conditions for good democracy or criticisms of mysterious, but major personal deal on a nuclear ANC policies formulated by Western powers, energy programme concluded in Russia between Western media or domestic opposition groups are Presidents Putin and Zuma. The nuclear energy increasingly portrayed as neo-colonialist. Western deal was in contrast with energy and economic “colonial” states are not interested in South Africa’s policies, including the NDP. Major departments in development, but rather want to take its natural South Africa were not involved in the opaque deal, resources and never give anything back, Zuma reputed to be worth up to $100 billion.353 The deal told the Russian TV news channel RT in May 2015. has as much potential for corruption as the arms Zuma believes things “would never be the same” deal scandals of the 1990s. with China that has been heavily investing in Africa since the early 2000s, as the Chinese came to the Putin, a former KGB intelligence officer, used continent “as equals”. the opportunity to strengthen Russia’s policy to enhance its position in Africa and extend its Some NGOs claim that the Chinese government influence in South Africa.354 When Zuma believed he and the ANC government assist each other in had been poisoned in August 2014, it was to Russia obstructing or delaying the requests of critical that he allegedly went to get medical treatment.355 NGOs to gain observer status at some UN structures Tens of intelligence officials of South Africa have for NGOs. These NGOs include Freedom Now, a also received training in Russia in recent years.356 US-based group supporting political prisoners of conscience, and AfriForum, a South African-based group supporting minority and civil rights.350

348. 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. 349. http://blog.unwatch.org/index.php/2014/04/01/shaky-road-to-important-peaceful-protest-resolution/. 350. http://mg.co.za/article/2015-08-13-diplomatic-fracas-brews-over-ngo-freedom-now. 351. http://www.bdlive.co.za/opinion/columnists/2013/11/18/thick-end-of-the-wedge-zuma-is-pretty-well-untouchable- politically. 352. 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. 353. 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” (editorial), Financial Mail, 4 September 2014; “SA denies corruption in Russia’s nuclear deal”,Fin24 , 1 October 2014. For tensions involving the executives of the South African Nuclear Energy Corporation (NECSA) and alleged payments of NECSA funds to the ANC, see http://mg.co.za/article/2015-02-27-energy-minister-shields-key-zuma-nuclear-ally. Also see Andrew Feinstein, After the Party: Corruption, the ANC and South Africa’s Uncertain Future (Verso, UK and USA, 2010). 354. http://www.atlanticcouncil.org/en/blogs/africasource/russia-s-return-to-africa-an-update. 355. http://www.iol.co.za/pretoria-news/opinion/reliance-on-russia-goes-way-back-1.1903975. 356. http://www.news24.com/SouthAfrica/News/Spies-trained-in-Russia-raise-double-agent-fears-20140831. 87 SAMonitor PART VIII

The ANC discussion document claims there is a her continued investigation of the Nkandla scandal concerted effort to destabilise Russia: involving Pres Zuma. The US ambassador was present and lodged an official complaint. The US does not appreciate the resurgence of China and Russia as dominant factors in the arena Peter Fabricius of the ISS commented: of international power relations. It has instead declared a cold war against these two emerging [A]t least [Maphatsoe] did new members of the world powers ... Russia has not been spared the diplomatic corps a favour … Many diplomats still wrath of US-led Western imperialism. As with arrive in the country under the naïve impression China, the Russian leadership is constantly being that they are coming to serve in the land of portrayed in the Western media and official Mandela, a rather idyllic rainbow nation in love discourse as monsters abusing human rights. As with itself and the entire world. Maphatsoe’s with China, counter revolutionary demonstrations crude suggestion … would have been a wake- and marches are being staged and given huge up call, alerting them to the sort of ideological publicity in the Western media in order to sentiment that still runs beneath the surface destabilize and/provoke the Russian government here, and sometimes emerges.358 ... Whatever genuine concerns may exist within the Russian population and populations of the When in early June 2015 the news broke that former Soviet Union, there is a clear plot to exploit the hosting of the FIFA World Cup in South Africa this in order to contain the rise of Russia globally. in 2010 may have been obtained through a $10 It is an encirclement strategy that seeks to isolate million bribe to FIFA officials, a similar response Russia in the manner that is being attempted on emerged from ANC circles. Peter Bruce of Business China as well … Day wrote:

Washington’s sponsored destabilisation is not It’s just crazy for Sport Minister Fikile Mbalula, limited to Russia and China. We see it unfolding even by his own colourful standards, to insist in the streets of Latin America including in before the media that the government did not Venezuela which the US has strangely declared a pay a $10m bribe to Warner and, at the same threat to its ‘national security’, in the Middle East time, challenge the FBI to produce evidence that and in African countries with the sole intention they did. What if the Americans oblige? of toppling progressive democratically-elected governments. This has a bearing on the nature The government’s defensive reaction seems of conflict and the scourge of terrorism we see at least partly motivated by an improbable in the world today.357 conspiracy theory that the arrests and warrants out for FIFA executives are an American plot to embarrass our new ally, President Vladimir Putin, and to take the shine off the FIFA World Cup in Anti-US bias and paranoia Russia in 2018, or to have the 2022 Qatar cup moved to the US. Mbalula sounded plausible at Other indicators of a paranoid and sometimes times addressing the media on Wednesday, but knee-jerk anti-US attitude emerge periodically. In repeatedly spoiled the effect by drifting off into September 2014 , the deputy incoherent but presumably revolutionary swirls minister of Defence and Veterans, called Public at Imperialism.359 Protector Thuli Madonsela a CIA agent because of

357. African National Congress NGC 2015 Discussion Documents,http://www.anc.org.za/docs/umrabulo/2015/ngc_disc_ docsy.pdf, p 162. 358. http://www.issafrica.org/iss-today/acronymia-nervosa-the-cia-and-the-icc. 359. http://www.bdlive.co.za/opinion/columnists/2015/06/05/thick-end-of-the-wedge-fikile-mbalulas-folly-play-chicken- with-the-fbi. 88 PART VIII SAMonitor

Anti-Western posturing and completely the balance of forces in favour of imperialism”. This new imperialism has “plunged legitimization humanity in a perpetual socio-economic crisis”, and the United States stands accused of “effectively The anti-US position of the ANC has implications for using its aggressive foreign policy to advance its the US Africa Command on the African continent, national interests”. as is apparent from this excerpt from the NGC discussion document: Leaving the International Criminal The campaign to engage all [African Union] Court? member state [sic] on the continent not to host these military bases continue [sic]; however, the The ANC government’s foreign policy often diverts question that should be posed is whether this from Western powers’ concerns regarding human is still preventable because in certain places on rights and rule of law. On 15 June 2015, for example, the continent AFRICOM has already established the Sudanese president Omar Al-Bashir was allowed its footprint in the form of training soldiers and to leave South Africa, despite an International other newly devised mechanisms? The ANC has Criminal Court warrant for his arrest. On the same to deal with these realities and develop new day Judge President Dunstan Mlambo of the High strategies to take this campaign forward.360 Court in Pretoria ruled that the ANC government’s failure to arrest Al-Bashir was inconsistent with the In the document, the ANC leadership also reaffirms South African Constitution, that the government its ideological roots: was in contempt of court and should have arrested and detained Bashir.363

The ANC is a revolutionary national However, at the ANC’s NGC meeting in October liberation movement which is an 2015, the NGC took the decision to ask the ANC government to begin the process of withdrawal of integral part of the international its membership of the ICC.364 When the opposition revolutionary movement to liberate party, the DA, in September 2015 brought a motion to impeach Pres Zuma for the government’s humanity from the bondage of handling of the Bashir visit, the ANC’s response imperialism and neo colonialism.361 was to state that the DA was acting on behalf of the US and promoting an “imperialist agenda”.365 The text even goes so far as to quote the founder of the Soviet Union, Vladimir Lenin, on the The factionalised ANC is now more reliant on revolutionary transformation of society, and extolls Russia and China as foreign patrons.366 However, the value of the Russian Revolution in 1917.362 The the agency of the ANC’s own factions should not ANC document does not celebrate the fall of the be underestimated. Negative responses by the ANC Berlin Wall a quarter of a century ago. Instead, towards Western powers, businesses and value the ANC document actually laments “the sudden systems at crucial moments are more likely in the collapse of socialism in the world [that] altered next few years.

360. African National Congress NGC 2015 Discussion Documents, http://www.anc.org.za/docs/umrabulo/2015/ngc_disc_docsy.pdf, p 176. 361. African National Congress NGC 2015 Discussion Documents, http://www.anc.org.za/docs/umrabulo/2015/ngc_disc_docsy.pdf, pp. 160, 185-186. 362. http://allafrica.com/stories/201508251340.html; http://time.com/3601968/anc-south-africa-china-communist-party/. 363. http://www.bdlive.co.za/africa/africannews/2015/06/15/failure-to-arrest-bashir-violated-south-african-constitution-judge- rules. 364. http://www.voanews.com/content/anc-wants-south-africa-out-of-international-criminal-court/3002092.html. Also see http:// www.theguardian.com/world/2015/oct/14/why-south-africa-is-wrong-to-leave-the-international-criminal-court; http://www. dailymaverick.co.za/article/2015-10-26-op-ed-how-africa-can-fix-the-international-criminal-court/#.VjOQ8JqBfmQ. 365. 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. 366. http://allafrica.com/stories/201508251340.html; 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/. 89 SAMonitor PART IX

South Africa continues to present attractive business opportunities. However, the political risk to business cannot be ignored. Simiso Velepini, the South Africa analyst of Control Risks, a major business risk consultancy, stated in February 2014 that in the medium to long term, the political risk outlook in South Africa will worsen before it gets better. This report follows a different methodology for the analysis of events, but comes to a similar conclusion.367

What are some of the key issues of political risk in the new symbolic order and hybrid regime in the next five years?

The increased political risk in the next five years will increase the opportunity cost of business in South Africa. Several domestic and foreign businesses have already restructured or reduced their activities in South Africa. Others have waited or stayed away from South Africa, or have decided to rather pursue opportunities in other markets.

Three drivers will strengthen the dynamics of Part IX a hybrid regime and democratic decline in the coming years: they are intensified factional competition in the run-up to elections andthe presidential succession; the further politicization The political of the security forces and securitization of politics to prop up presidential rule; and the weak economy and more limited state resources.

The ANC hybrid regime is likely to remain in place risks to in the next ten years. A change in president in 2019 may cause a few policy changes, but it will be unable to significantly change the underlying dynamics, rules of the game and incentive systems business in described. Once state institutions in a one-party- dominant state have become so permeated with factions, patron-client networks and unaccountable presidentialism, the processes become self- the next five generative. Incumbents have too much to lose and too slim chances of having political or economic alternatives. Democratic checks and balances on years these forces will be ineffective.

367. http://www.bdlive.co.za/economy/2014/02/12/little-improvement-seen-in-south-african-risk-scenario. 90 PART IX SAMonitor

Faced with new political and trade union challengers, The high levels of state debt and the needs of the the ANC is desperately trying to find ways of regaining ANC’s patronage networks will drive efforts to some of its lost support among key constituencies. look for new sources of income, both domestically Due to the current levels of state debt, ANC factions and internationally. The value of some state-run are under pressure to find economic resources to corporations, but also other assets or opportunities sustain themselves and their patron-client networks. of which it should be the public custodian, could be capitalized or mortgaged. Sometimes this will Policies for economic growth will remain torn have a knock-on impact on existing government between different stakeholders and policy undertakings towards business. preferences. Policy incoherence and unexpected twists will often reflect phases in factional The search for new sources of income will coincide competition and newly-bargained advantages and with an increased effort at economic diplomacy, alignments, rather than ideological vacillation. both formal and informal. The diplomacy will be couched in the rhetoric of branding, using South Policy swings and uncertainty will be experienced Africa’s many and unquestioned opportunities. most by companies in those sectors most exposed However, the actual results would at least partially to the government’s political priorities or regulatory strengthen the ANC’s patron-client networks and licensing power. Minerals, energy, security, in state structures, rather than South African agriculture, telecoms and pharmaceuticals would communities and citizens as a whole. be among these sectors. Factional struggles for scarce resources will The ANC has proceeded with several regulations, drive efforts to increase state income through policy initiatives, bills and laws regarding mining these measures and others. Unaccountable and energy, the security industry, affirmative action presidentialism, local big men and informal patron- and black empowerment, land, patents, and foreign client networks may play a role in this regard. investors in general. The common underlying policy There are different codes of conduct in different in all of them is the same: they greatly increase the jurisdictions, and international business would ANC government’s interventionist powers in the need to heed best practices regarding integrity risk economy. and reputational risk.

The planned and actual measures would weaken The levels of visible state mismanagement property rights and reduce private-sector autonomy. and operational risk are likely to remain high This result would strengthen the position of crony or sometimes even rise. This state of affairs capitalists with links to ANC factions compared to will continue to have an effect in many areas other businesses. of service delivery: the security of citizens and farmers; electricity; water management; waste To date, consumption and short-term fulfilment of management; roads; education; postal services; patron-client obligations, rather than production, and others that may arise. The impact will differ per state capacity-building or long-term investment, province and locality, with pockets of sufficient or have dominated the deployment of resources and good service delivery in provinces and local areas. opportunities gained. Based on the internal and external dynamics of the The political effect of more ANC resources will be ANC government, if interventions do not have the to regenerate the power of ANC factions, since required effect, there is a risk that such a result would patrons will be able to cultivate new clients and not trigger a reassessment of the intervention, but constituencies and sustain relationships with rather a stronger form of intervention. existing ones in the hybrid regime. During the competition with new political and trade union Protest politics may have some impact on challengers, such steps could also be presented as operations in a specific location, but are likely to populist measures aimed at improving the lot of be of limited duration. Depending on the locality, the poor. protest politics may be more prominent during

91 SAMonitor PART IX periods in the run-up to elections, during elections key decision-makers on foreign patrons like Russia, and shortly thereafter. China or other political and business actors. The field of competitors and the importance of specific Factions within trade unions and trade unions will competitive advantages of business may change compete intensely with each other for members, suddenly. Western business is advised to actively networks, power, status and resources. As a result, involve their business associations, business media industrial unrest will be a major risk during the next and policymakers to support their projects in South five years. Due to the context in which it will be Africa. occurring, the potential politicization of disputes could be fast and assume militant forms. International business may find it worthwhile to conduct corporate social responsibility projects Real or instigated xenophobic, anti-Western or that focus on entrepreneurship training and indigenization sentiments may emerge during business education. Given current socio-political power plays or tough negotiations. When under dynamics, such initiatives should take into account pressure over non-democratic or bad governance, the cultural capital and mother-tongue preferences the ANC, as during the fracas in Parliament on 13 of different groups and the option of private November 2014, will resort to smearing credible education institutions. If the projects involve critics and political opponents as “racists” or cooperation between foreign and South African “fascists”. Business may sometimes be caught in institutions of public education, strict criteria and the crossfire. monitoring to reinforce the remaining spaces of academic freedom are recommended in policy- There is an oligopoly of violence instead of the relevant education and research. state’s monopoly of violence. The ANC government does not consider a restoration of the security of There is a limited but robust evolution of capacity citizens and businesses as a state priority. Business and self-help initiatives within cities, communities, and NGOs should review and regularly update their and the private sector. This trend will involve an risk mitigation measures. authority migration over time and shape the new political order. Business and NGOs are advised The factional search for more resources in the hybrid to identify potential partners and to use the regime could result in an increased dependency of opportunities involved.

92 PART X SAMonitor

South Africa’s political and economic restabilization increasingly depends on a healthy private sector and sustainable communities. During the past few years, the ANC government has increasingly failed to deliver good governance. The hybrid regime and the incentives and sanctions of the new political order will seriously constrain any improvement in the near future.

New partnerships, new jobs and skills development will be important to rebuild South Africa’s stability and prosperity. There are still opportunities. Europe-based small and medium enterprises, cultural and education institutions and networks, and NGOs could play a major role in this regard.

Opportunities: Economic growth is booming in many parts of sub-Saharan Africa, with an Part X average growth of 5% or more. In contrast, South Africa’s economic growth has been in decline for years, and currently is less than 2% per year. Despite its prime location and advanced infrastructure, foreign-built projects Rebuilding by South African actors in Sub-Saharan Africa stand at 7%, compared to 32% for China.368

A McKinsey Global Institute report, South the private Africa’s big five: Bold priorities for inclusive growth, identifies five major opportunities: service exports; advanced manufacturing; infrastructure; natural gas; and the agricultural sector and value chain. If government and businesses prioritize initiatives from these sectors, they could by 2030 increase GDP growth by a total of 1.1 percentage points per year, adding 1 trillion rand ($87 billion) to the annual GDP and sustainable creating 3.4 million new jobs. 369 communities

368. Also see https://www2.deloitte.com/content/dam/Deloitte/za/Documents/manufacturing/za_africa_construction_ trends_2015_10032015.pdf. 369. http://www.mckinsey.com/insights/africa/south_africas_bold_priorities_for_inclusive_growth. 93 SAMonitor PART X

Government fails to deliver: The International conditions of adversity. They also constitute a key Monetary Fund (IMF) released its October 2015 and very strong minority among the six million world outlook report, in which it cut South Africa’s individual taxpayers, nationally and locally. growth outlook to 1.4%, from its July projection of 2%. Its projection for 2016 is even lower, at 1.3%. There are larger concentrations of Afrikaans In its report, the IMF listed five primary reasons for speakers in Gauteng province and the Western South Africa’s bleak economic outlook: electricity Cape, where they form just less than 50% of the limitations; the need for reform in education; population. Numerically and socially they are also labour conflicts; the need for product markets to influential in the Northern Cape, North-West, raise competitiveness and productivity; and the Mpumalanga and Free State provinces. Afrikaans- need to improve service delivery.370 speaking businesses and NGOs are well-placed to partner with European businesses and NGOs that Community and private sector alternatives: In want to use developed parts of South Africa as the case of South Africa, the broader population platform for expansion into other African countries of 54 million people has at least eleven major and markets. identity groups, often with regional histories and territories. None of these groups constitute a Academic education: Considerable opportunities complete majority, according to South Africa’s exist in private education or community-based Census 2011. Rebuilding South Africa should take education. Among the Afrikaans-speaking middle both the common and the diverse needs of all classes, as well as the Afrikaans-speaking poor, communities and citizens into account. access to mother-tongue tertiary education is becoming more difficult. Of the thirty-eight universities in South Africa, six have traditionally In this regard, Afrikaans-speaking been Afrikaans-medium institutions. Due to a communities have not received combination of political pressures and market sufficient attention. Afrikaners demands, the position of Afrikaans has been seriously weakened at all of them. At present, constitute about 2.6 million people; the position of Afrikaans at three universities are coloureds who speak Afrikaans about threatened by changing policies: the University of Northwest, the University of the Free State and the 3.4 million and black people who speak University of Stellenbosch. Afrikaans about 600 000.371 Already, the Solidarity Movement, with the support The private sector remains the most important from various business, academic and community engine of potential growth. In South Africa’s private stakeholders, has established Akademia as a sector, Afrikaans-speaking citizens and communities business college. It aims to cater for the academic play a major role in all the sectors mentioned in the needs of the Afrikaans community, with plans to McKinsey report above. In addition, they and other become a small, high-quality university in the next communities also constitute potential partners decades. Foreign partnerships will constitute an and markets with specific needs and skills in essential part of its growth.372 academic education, vocational education, cultural relationships, and healthcare. Many young Afrikaans speakers also continue to look for opportunities to travel and work for a The Afrikaans-speaking language group are spread period before returning home. While many from in communities across South Africa. As a group, they this age group go to the English-speaking world, include many of the better skilled and middle-class real gaps and opportunities exist in Dutch-speaking population in South Africa, with a history of building countries to establish mutually beneficial and also strong community and educational institutions in longer-term relations. In the war for talent, and

370. http://www.bdlive.co.za/opinion/columnists/2015/10/14/at-home-and-abroad-anc-councils-problem-was-the- elephant-in-the-room. 371. See Census 2011 at http://www.statssa.gov.za. 372. http://www.worldbank.org/en/country/southafrica/publication/south-africa-economic-update-jobs-changing- demographics. 94 PART X SAMonitor in the establishment of new business ventures opportunity ranges from design to construction outside Europe, young and skilled Afrikaans management to maintenance services. 375 speakers represent an overlooked niche segment. In financial services, potential growth areas include Vocational education: In many poorer urban and wholesale and retail banking. Digital opportunities rural communities, a massive scale-up of vocational are especially promising, with an expanding middle training is needed for technical skills to support class, quick adoption of smart phones and improved export-oriented industries. As indicated in the conditions for internet access. South African actors World Economic Forum’s Global Competiveness are often world leaders in insurance products and Report 2014-2015, South Africa’s overall position services customized according to demographics regarding the quality of government education had and income. slipped from a low 119th position in 2009 to one of 140th out of 144 countries by 2015.373 Advanced manufacturing: South Africa has a pool of skilled labor, in which people from Afrikaans- Heathcare: Private healthcare systems and speaking communities constitute an important community-based healthcare systems remain a segement. The country has the potential to grow into potential growth market. South African higher a globally competitive manufacturing hub focused education systems still produce many health-care on high-value-added categories such as automotive professionals sought after in Europe, but state- and industrial machinery and equipment, and supported health systems in several provinces are chemicals. To realize this opportunity, South African decaying. For example, a commission of inquiry, manufacturers will have to pursue new markets and held in the Free State in July 2015, issued a report step up innovation and productivity. 376 on the provincial healthcare system in crisis. It highlighted problems with virtually every aspect, Infrastructure: South Africa is investing heavily including inadequate emergency services; poor in infrastructure; however, big gaps remain in prioritisation of funds; life-threatening shortages electricity, water, and sanitation. According to of medicines; and the “plundering of what little McKinsey, partnerships between the public resources there are”.374 and private sectors could make infrastructure spending up to 40% more productive. This could Service exports: Europe as a whole remains the be achieved by maximizing the use of existing most important trading partner of South Africa. assets and increasing maintenance. In addition, Many small and medium-sized businesses run by prioritizing projects with the greatest impact, and Afrikaans speakers continue to look at business strengthening management practices to streamline opportunities with European partners. Many of delivery, would be needed. 377 them also draw from cultural repertoires of a strong work ethic, knowledge about Africa, and flexible Many parts of South Africa are arid or becoming so, improvisation under conditions of adversity. and the demand for water management expertise and customized systems is set to grow.378 The South Africa has highly developed service industries. expertise developed in South African conditions Nevertheless, it currently captures only 2% of the rest would stand European companies in good stead if of sub-Saharan Africa’s market for service imports, they are able to expand to other countries in Africa which is worth nearly half a trillion rand ($38 billion). or Asia. With the right investments, service businesses could increase exports to the region. In construction, the

373. Klaus Schwab and Xavier Sala-i-Martin (eds), “The Global Competitiveness Report, 2014-2015”, World Economic Forum 2015, p 341. 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. 374. http://www.bdlive.co.za/national/health/2015/11/11/report-reveals-healthcare-crisis-in-free-state. 375. http://www.mckinsey.com/insights/africa/south_africas_bold_priorities_for_inclusive_growth. 376. http://www.mckinsey.com/insights/africa/south_africas_bold_priorities_for_inclusive_growth. 377. http://www.mckinsey.com/insights/africa/south_africas_bold_priorities_for_inclusive_growth. 378. Steve Hedden and Jakkie Cilliers, “Parched prospects: The emerging water crisis in South Africa”, Institute for Security Studies - African Futures, 11, September 2014. 95 SAMonitor PART X

Energy: South Africa’s electricity shortage has con­ beneficial relationships with cultural institutions in strained growth. Despite new capacity, McKinsey Europe. The cultural sector in general and cultural forecasts another shortfall between 2025 and 2030. entrepeneurship specifically also currently present Natural-gas plants can provide an alternative to opportunities for innovation. diversify the power supply. They are fast to build, entail low capital costs, and have a small carbon Tourism: Cultural, historical, nature and adventure footprint. McKinsey estimates that South Africa tourism all constitute major opportunities for could install up to 20 gigawatts of gas-fired base- business. Among Afrikaans-speaking citizens, load power-generation capacity by 2030. Gas Europe historically constituted a tourist destination could be provided through imports. However, once of high interest. An estimated 300 000 tourists from again, policy and regulatory certainty would be a Germany to South Africa annually and an estimated challenge.379 100 000 tourists from the Netherlands annually indicate the current potential for partnerships.381 Afrikaans-speaking and other communities often strive for increased self-sufficiency from unreliable A place for all communities and citizens: Afrikaans government-delivered services. In addition, among speakers of all communities have historically made the middle class, there are strong concerns about an important contribution to the creation of key the environment and sustainability. Local renewable institutions and productive gains in South Africa.382 energy systems would be highly relevant and Their presence in areas currently constitute a force potentially lucrative in a country with the climate for development and stability during a period of and sunshine of South Africa. political and economic fluctuation.

Raw and processed agricultural exports: Agri­ The turnaround of South Africa’s economic decline cultural and food consumption is rising in markets will be unthinkable without the well-being of throughout sub-Saharan Africa and Asia. South Afrikaans communities and more than 6 million Africa could triple its agricultural exports by 2030. Afrikaans-speaking citizens. However, due to the This could be a key driver of rural growth, benefiting impact of economic discrimination, concerns about the nearly one in ten South Africans who depend security and cultural marginalization, hundreds of on subsistence or smallholder farming. According thousands of them have already emigrated. This to McKinsey, capturing this potential will require a trend represents a major brain drain and loss of strong effort to improve production, productivity, job opportunities created by the skilled. As Francis and agroprocessing. 380 However, to achieve this Fukuyama has noticed, the marginalization of such goal, and ensure food security for all, the concerns a skilled but visible minority would only harm the about safety and property rights of the commercial diverse population of South Africa. At present, farming sector need to be addressed. there are about 600 German businesses and 350 Dutch businesses already in South Africa, and about Cultural relations: Most Afrikaans speakers are 100 000 German citizens living in South Africa. very conscious of and positive towards cultural links with Flanders, Germany and the Netherlands. Some A stable environment for foreign business people of these links are also historically institutionalized and citizens in many areas in South Africa will in academia, cultural circles, tourism, family often depend on the presence and well-being of acquaintances and local networks. Afrikaans communities, businesses and NGOs. European business and NGOs should consider Government policies regarding Afrikaans cultural the often overlooked opportunities for mutual affairs are experienced by many as either malevolent benefits, shorter term transactions and longer or ignorant neglect. Many of their community term partnerships in South Africa and Africa. leaders are positive about strengthening mutually

379. http://www.mckinsey.com/insights/africa/south_africas_bold_priorities_for_inclusive_growth. 380. http://www.mckinsey.com/insights/africa/south_africas_bold_priorities_for_inclusive_growth. 381. http://www.sanews.gov.za/south-africa/sa-shares-tourism-success-story-germany; http://www.statssa.gov. za/?p=4362. 382. 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). 96 ADDENDUM SAMonitor

Context

It is a given that press freedom – or media freedom in its more modern guise383 – is globally one of the most contentious subjects, and that no single definition of press freedom exists. (Just as, for that matter, no single interpretation of democracy exists).

Especially our continent does not have a strong record regarding media freedom. (Of course: also not democracy – and that is probably why the two can be regarded as synonymous). Under apartheid it was even said that South Africa had the “most free unfree” press in Africa, with “newspapers being free to publish what they wanted to, as long as they did not publish what they were told not to publish”.384

With no universal definition of press or media freedom, or freedom of expression, one can accept that it rests on the principles that any individual has the right “to know, to impart and Addendum to discuss”.385 Unfortunately it is also a given that the matter of Media freedom in South Africa: press or media freedom – or the lack thereof – goes hand in hand with the history of a country A luta continua? (ergo media freedom and democracy being interchangeable). One can state that a study of a A guest contribution country’s media history constitues a study of its political systems. by Prof Lizette Rabe

383. The notions press freedom and media freedom will be used in an interchangeable way in this article as they refer to the same principle. 384. H.G. Rudolph, “Freedom of the Press or the Right to Know”, South African Law Journal, 81(1), 1981, p 85. 385. Research and Library Services Division, Provisional Legislative Council Secretariat,Measuring Press Freedom, 2004, accessed on 3 October 2004 at http://www.legco.gov.hk/yr97-98/english/sec/library/in3_plc.pdf, p 1. 97 SAMonitor ADDENDUM

It is true that governments in general are “uneasy” It is indeed clear that we are on a slippery slope since about media freedom,386 and it certainly is not a media freedom was measured for the first time recent phenomenon. Since newspapers existed, on a global scale just more than a decade ago. In they have struggled not only to print, but to 2002 South Africa was 26th on the first global Press print free of government control.387 John Milton Freedom Index.391 Twenty years after liberation – (1608-1674), criticising in his time the system of and a litany of media freedom violations – South “licensing” in Great Britain, called freedom of the Africa is 42nd on the 2014 Index.392 For 2015, South press “the liberty to know, to utter and to argue Africa fared marginally “better” by being in the 39th freely according to conscience”.388 position393 – not because of improvements, but rather because of worsening situations elsewhere. South Africa is no exception, and the history of press Another body, Freedom House, categorised South freedom since colonial times is also the history of Africa’s media as “partially free”, despite the irony South African government systems. Press freedom of our constitutionally entrenched media freedom, in South Africa developed from a state of no press and has downgraded South Africa on its list from freedom under Dutch VOC rule, continued as such position 33 in 2014 to position 37 in 2015.394 It was during the first part of British colonial rule, with the biggest downgrading on its index, together relative freedom afterwards, to an era under which with that of Botswana and South Sudan.395 media companies had to operate under the “states of emergency” during the despotic apartheid rule Is it a matter of history repeating in the 1980s.389 At the beginning of the 1990s, a new democratic South Africa embraced media itself? freedom as it was described in the first draft of the Constitution and eventually entrenched in the final As part of this contextual backgroud, a brief revisit Constitution of 1996. of the era under apartheid is also justified. It needs to be noted that post-1948, when the NP Yet, even with this constitutionally entrenched government came into power, an “avalanche of media freedom, one influential editor, Ferial security legislation” created “a massive structure Haffajee, described the situation in South Africa in of censorship and self-censorship”.396 2015 as the “beginnings of a police state”.390

386. 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, p 66. 387. J. Crwys-Williams, South African Despatches. Two Centuries of the Best in South African Journalism (Ashanti Publishing (Pty) Ltd, Johannesburg, 1989), p vii. 388. D. Yutar, Freedom of the Press in a Post-Apartheid South Africa (Reuter Foundation, Green College, Oxford, 1995), p 2. 389. L. Rabe, “Ten Years into Democracy – Media Freedom in South Africa”, unpublished seminar delivered at the Department of Media and Communication, University of Oslo & Freedom of Speech Foundation Fritt Ord, Oslo on 13 October 2004. 390. J. Gerber, “Gewone mense moet betoog”, Die Burger, 18 Februarie 2015, p 4. 391. Reporters without Borders, 2002, accessed on 1 October 2004 at www.rsf.fr/article.php3?id_article=4116. 392. Reporters Without Borders, 2014, accessed on 2 January 2015 at http://en.rsf.org/. 393. Reporters Without Borders, 2015, accessed on 28 July 2015 at http://index.rsf.org/#!/index-details. 394. Freedom of the Press, Freedom House, 2015, accessed on 1 May 2015 at https://freedomhouse.org/report/ freedom-press/freedom-press-2015. 395. A. October, “Kommer in Amerika uitgespreek oor persvryheid in SA”, Die Burger, 1 Mei 2015, p 2. 396. C. Merrett, A culture of censorship. Secrecy and intellectual repression in South Africa (David Phillip, Cape Town, 1994), p 21. 98 ADDENDUM SAMonitor

It is interesting to note that some of the statements Since 1993 media freedom has been enshrined in by the first three consecutive apartheid prime the Bill of Rights which was accepted as Article 16 ministers reverberate in statements today by ANC of the new Constitution in 1996.400 politicians. The first apartheid prime minister, D.F. Malan, described South Africa’s English press as the However media constituencies had made a mistake “most undisciplined in the world” and suggested if they thought this to be a guarantee for media that journalists should register like doctors.397 His freedom. The “honeymoon” between the media successor, J.G. Strijdom, described South Africa’s and government indeed was very brief. This was English press as the country’s “biggest enemy”, and later articulated in the ANC’s document on “Media his successor, H.F. Verwoerd, blamed the economic transformation, ownership and diversity”.401 The depression on the “irresponsible and unpatriotic document started with a quotation by Paulo behaviour of the English press”.398 Freire402 (1921-1997), which can be regarded as the key in which to read its contents: The now defunct South African Society for Journalists described the era as: A society beginning to move from one epoch to another requires the development of an especially flexible and critical spirit. Lacking There must be few countries in the such a spirit, men [sic] cannot perceive the world where the press is so beset by marked contradictions that occur in society as restrictive legislation as in South emerging values in search of affirmation and fulfilment clash with earlier values seeking self- Africa and the practice of journalism preservation.403 has become so hazardous in the 399 The document went on to criticise the media extreme. for adopting an “anti-transformation, anti- development and anti-ANC-stance”.404 It needs to be Post-1990: Freedom? said that the exact quote had been used more than a decade earlier, in 1997, in the opening address by The question is whether media freedom indeed the then CEO of the GCIS at a conference, in which arrived on the coattails of democracy. Although it he referred to the media as “grappling” with how is accepted that, theoretically, all laws prohibiting to “change their focus as they change themselves media freedom were recalled with F.W. de Klerk’s in a changing society”.405 watershed announcements on 2 February 1990 to herald a “New South Africa”, a significant number remained.

397. Hepple in P. Nänny, “History of censorship in South Africa”, unpublished Master’s assignment, Stellenbosch University, Stellenbosch, 2003, p 2. 398. D. Yutar, Freedom of the Press in a Post-Apartheid South Africa (Reuter Foundation, Green College, Oxford, 1995), p 4. 399. P. Nänny, “History of censorship in South Africa”, unpublished Master’s assignment, Stellenbosch University, Stellenbosch, 2003, p 3. 400. J. Retief,Media Ethics. An introduction to responsible journalism (Oxford University Press, Oxford, 2002), p 26. 401. ANC, Media transformation, ownership and diversity document, 2010, accessed on 12 November 2015 at http:// www.anc.org.za/docs/discus/2010/mediad.pdf. 402. Misspelt as Frere. 403. ANC, Media transformation, ownership and diversity document, 2010, accessed on 12 November 2015 at http:// www.anc.org.za/docs/discus/2010/mediad.pdf, p 1. 404. ANC, Media transformation, ownership and diversity document, 2010, accessed on 12 November 2015 at http:// www.anc.org.za/docs/discus/2010/mediad.pdf, p 2. 405. J. Netshitenzhe, “Social transformation and media coverage”, opening address delivered at the Meet the Media Conference, South Africa, 16 March 1997. 99 SAMonitor ADDENDUM

The anti-media sentiments grew, with the media The relationship between the media and currently generally regarded by the governing party government has worsened to the extent that the as too free and too critical, and also unpatriotic. current president, Jacob Zuma, has said that the media is “ideologically out of sync with the society Fortunately, the previously divided “white” media in which it exists”. However, “[w]hat he is really (divided according to language, namely English unhappy about is that it is out of sync with him and and Afrikaans), as well as divisions between white the ANC”.410 and black journalists, were overcome by the forming of SANEF in 1996, a body which brought together editors’ groupings that had previously Threats against media freedom are been separate according to language and race.406 already so severe that a comparison Today this important body, together with, amongst could be drawn between the media others, the R2K campaign, stand together against infringements and, indeed, parliamentary bills, (un)freedom under NP government and which are threatening media freedom. that under ANC government.411 Real threats, real infringements, Several alarm bells are ringing. The first to go off was at the ANC’s Polokwane conference of 2007 real parliamentary bills where the Media Tribunal, now known as the Media Appeals Tribunal (MAT), was on the agenda Although some laws were lifted, and in 1998 it could for the first time. have been stated that there had been “significant media freedom since the 1990s in South Africa” – Together with the MAT, the so-called Secrecy Bill, amongst them that newspapers no longer needed the scrambling of signals during the State of the to register, no ministerial power first had to decide Nation Address (SONA) of 2015 and the changes what could be printed or published, and that the to the Films and Publications Board are among the notorious Publications Act had been replaced407 – most severe current threats. altogether eighty laws that can have some or other influence on media freedom, still exist.408 Indeed, Regarding the MAT, there is consensus that the current threats to media freedom make a mockery matter will end in the Constitutional Court should of these “changes” recorded in 1998. it remain on the ANC’s agenda.412 However, the minister in the Presidency, Jeff Radebe, recently By 2013 a headline called for “Scrap apartheid- reiterated the government’s commitment towards era laws!” (including the exclamation mark).409 At media freedom.413 On how “the positivity towards least ten laws, it was said, not only limited media press freedom and the looming media appeals freedom, but violated the Constitution. One was tribunal would work in conjunction” with one the National Key Points Act of 1980, used to curb another, Radebe said that the tribunal needed to reporting on the presidential compound Nkandla. be seen “in perspective”. A parliamentary enquiry

406. E. Barratt, History of the South African National Editors’ Forum (Published unknown, Johannesburg, 2003). 407. G. Barker, “Media law. To tread cautiously with newfound freedom”, in A.S. de Beer (ed), Mass Communication towards the Millennium (J.L. van Schaik, Pretoria, 1998), p 284. 408. R. Louw, “Scrap Apartheid-era Laws!”, The Media, January 2013, p 10. 409. R. Louw, “Scrap Apartheid-era Laws!”, The Media, January 2013, p 10. 410. D. Daniels, “The ANC’s Hysterical Gaze on the Media”, The Media, January 2013, p 18. 411. 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. 412. P. de Vos, “Would Media Appeals Tribunal be constitutional?”, accessed on 7 April 2015 at www. constitutionallyspeaking.co.za. 413. C. Mailovich, “Citizens must come first”, accessed on 12 November 2015 at http://www.news24.com/SouthAfrica/ News/citizens-must-come-first-radebe-20151112. 100 ADDENDUM SAMonitor would decide the “feasibility and desirability” of the Board.419 It is described as “a wolf dressed in sheep’s tribunal. He warned that no one should “jump to clothing of a Bill”, and that “[u]nder the pretext conclusions” before the process has “unfold[ed]”. of protecting the public, and especially children from harmful and explicit content online, the Bill Regarding the 2010 Bill on the Protection of imposes a new set of ill-conceived heavy-handed Information,414 SANEF as well as other civic regulations”. organisation groupings such as R2K, are vehemently working against this. Even after a number of These threats and rumours of threats have led to revisions there is still space for abuse, or at least an the Press Ombud system to revise itself fully and inconsistent approach to how information should to operate from February 2013 as the Press Council be classified.415 Journalists and whistleblowers can with a new press code and a new ombud system.420 be jailed for up to 25 years if they contravene its proposed stipulations. Still, the ongoing threats have led to the statement by the previous leader of the DA, Helen Zille, in one The third example of threats against media freedom of her last appearences in this role in April 2015, in is the scrambling of cellular phone signals during her keynote address to the Organisation of News the SONA on 12 February 2015, a chaotic and Ombuds, to say that it amounts to “state capture” extremely unparliamentary event in South Africa’s of the media.421 parliamentary history. The editor of Media24’s parliamentary team, Janet Heard, described the A luta continua event as “an hour which shamed South Africa”.416 Political commentator Justice Malala417 referred to how the quick “unscrambling” of the signal was an It has never been anticipated that the so-called admission that the government had “purposefully party of liberation – the ANC – will resort to not scrambled [it] in the first place”.418 Also: only threats against media freedom, but indeed legislation against the media.

Who ordered this? Why? The Ministers of Of course one can say history has the bad habit of State Security was later to say that repeating itself. the cellphone signal had been jammed That is why members of the public, together with by mistake. If that was the case, how SANEF and the R2K campaign, should stand up against these intrusions of media freedom, as in could it be unscrambled so quickly? the last resort, media freedom is the last guarantee for an individual’s freedom. Another example of the erosion of media freedom is the proposed changes to the Films and Publications

414. The Protection of Information Bill, accessed on 12 November 2015 at http://www.ssa.gov.za/Portals/0/SSA%20docs/ Media%20Releases/2010/Summary%20of%20the%20Protection%20of%20Information%20Bill.pdf. 415. V. Bhardwaj, “The Good and the Bad of the ‘Better’ Secrecy Bill”,Mail & Guardian, 25 October 2013, p 37. 416. J. Heard, “’n Uur wat Suid-Afrika in die skande steek”, Die Burger, 17 Februarie 2015, p 9. 417. J. Malala, We have now begun our descent (Jonathan Ball, Johannesburg & Cape Town, 2015). 418. J. Heard, “’n Uur wat Suid-Afrika in die skande steek”, Die Burger, 17 Februarie 2015, p 9. 419. K. Rajuili, “The Decriminalisation of Freedom of Expression in Africa: How Self-Regulation of the Media can Assist”, amaBhungane/Right to Know Campaign, Seminar of the Organisation of News Ombudsmen: The Decriminalisation of Freedom of Expression in Africa, STIAS, Stellenbosch, 23 April 2015. 420. J. Thloloe, Panel discussion: “The Decriminalisation of Freedom of Expression in Africa: How Self-Regulation of the Media can Assist”, Seminar of the Organisation of News Ombudsmen: The Decriminalisation of Freedom of Expression in Africa, STIAS, Stellenbosch, 23 April 2015. 421. H. Zille, Key note address, Conference of the Organisation of News Ombudsmen, Cape Town, 20 April 2015. 101 SAMonitor ADDENDUM

The words uttered by Nelson Mandela in February Africa second, is one such example where the ANC/ 1994, even before the first democratic elections, government insisted that he was misunderstood.423 should be the lodestar in South Africa’s new fight Previously, an ANC spokesperson had simply said: for media freedom: “You media are just hysterical”.424

A critical, independent and investigative press is Maybe it is time for South Africa to remind the lifeblood of any democracy. The press must herself that history repeats itself also in terms of be free from state interference … It must enjoy the excesses that are committed in the name of the protection of the Constitution so that it can nationalism, whether Afrikaner Nationalism or protect our rights as citizens. It is only such a African Nationalism, as in the words of George free press that can temper the appetite of any Orwell: government to amass power at the expense of the citizen … It is only such a free press that can have the capacity to relentlessly expose excesses The nationalist not only does and corruption on the part of the government, not disapprove of atrocities state officials and other institutions that hold committed by his own side, he has power”.422 a remarkable capacity for not This, especially when the governing party finds itself even hearing about them.425 more and more in a corner and blames the media for “misrepresenting” statements, or quoting That is why media freedom is non-negotiable. statements out of context. Pres Zuma’s recent Indeed: A luta continua. statement that the ANC comes first, and South

422. N. Mandela, Speech at the International Press Institute Congress, Cape Town, 14 February 1994. 423. M. Lamprecht, “Zuma is verkeerd verstaan, sê minister”, Die Burger, 11 November 2015, p 2. 424. D. Daniels, “The ANC’s Hysterical Gaze on the Media”, The Media, January 2013, p 18. 425. G. Orwell, “Notes on Nationalism”, 1945, accessed on 25 June 2015 at http://orwell.ru/library/essays/nationalism/ english/e_nat. 102 SAMonitor

About the author / editor

Dr 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 and is an associate of the Africa Studies Centre, Netherlands, a research associate at the University of the Free State, South Africa, 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 a regular book reviewer for the US-based Middle East Policy.

About the guest contributor

Prof Lizette Rabe is professor and chair of the Department of Journalism at Stellenbosch University. She obtained the degrees BA (1977, Philosophy cum laude), Hons B Journalism (1978, cum laude), M Journalism (1985, cum laude) and D Phil (1994) at the same university. She began her career as journalist at Die Burger in 1979. When she was appointed as editor of the magazine Sarie, she was the first woman to be appointed as editor of an Afrikaans publication at Naspers. In 2001 she joined academia when she was appointed as head of the Department of Journalism at Stellenbosch University. Since then she has published numerous peer-reviewed articles. She still writes for the mass media, and was author, co-author or editor of a number of publications. She was, among others, council member of the South African Editors’ Forum and founder- judge of the Vodacom Journalist of the Year competition. Rabe’s research foci are media history and cultural history. Besides awards such as the Rector’s Award for Excellence in Teaching, she was also listed as one of Stellenbosch University’s top 25 researchers across all faculties in 2013. In 2015 she was the recipient of the prestigious Stals Medal for communication and journalism from the Suid-Afrikaanse Akademie vir Wetenskap en Kuns.

103 SAMonitor

104