Paul Hoffman SC | 15 January 2020 | Paul Hoffman’s perspective on the political and economic woes of current-day SA
25 years after apartheid: a perspective on the political and economic woes of current-day South Africa
Nelson Mandela, then the world’s most famous political prisoner, was released from prison in February 1990. He brought about a new western-style democratic Constitution and Bill of Rights for post-apartheid South Africa. The first free and non-racial election in South Africa was held in April 1994.
On Mandela’s 101st birthday in mid-July this year, the leadership of the governing African National Congress found unusual parallel but contradictory ways to mark the occasion.
Speaking in Parliament during the debate on his presidential budget, South Africa’s fifth President Cyril Ramaphosa was astute to place emphasis on his commitment to western-style constitutionalism under the rule of law. This is exactly the re-assurance investors local and international investors need to hear.
As unemployment skyrockets, GDP plunges, grand corruption and kleptocracy become further entrenched, assurances of national commitment to the rule of law are acutely necessary. President Ramaphosa is struggling to implement his promised “New Dawn” after many years of “state capture” by ANC leaders in cahoots with corrupted police, defense force generals, prosecutors, businesses and most major national enterprises.
The political, legal and street struggle — between the governing ANC “good guys” trying to bring a promised South African “New Dawn” into being and the ANC “bad guys” who with their various accomplices appear to have stolen what some investigators estimate at up to one third of South Africa’s GDP over the last decade — is now all but consuming Mandela’s Rainbow Nation.
Second, the same auspicious anniversary was marked at ANC headquarters, Luthuli House in Johannesburg, fittingly named after ANC leader Chief Albert Luthuli, a Mandela predecessor of the 1950’s and Africa’s first Nobel laurate. ANC Secretary General Ace Magashule, a leading member of the cohort of ANC state capture-niks, spoke in stark contrast using investor-chilling language that would do both Robert Mugabe and Hugo Chavez proud:
“Our national democratic revolution is at a crossroads, bombarded by the most vicious, deceptive, manipulative and dishonest propaganda led by the S[outh] A[African] white monopoly capital in collaboration with international capital … their ultimate aim is to destroy our beloved country…”
Third, on the same day, the Governor of the South African Reserve Bank, equivalent to the American “Fed” or the U.K.’s Governor of the Bank of England, declared while announcing a 25 point reduction in the all-important “repo rate” that “structural reforms” are urgently needed to kick-start the long-floundering economy. South Africa’s economic situation is now so dire that the unemployment rate is almost 40% with 56% of young people between 15 and 24 not working and jobless line-ups of over 10 million workers — longer than they have ever been in the history of the country including during apartheid.
The country, Africa’s second largest economy after Nigeria, is likely the most unequal in the world; its economic competitiveness is declining and underperforming in comparison to GDP growth in many other African states; and grand corruption and state capture are an increasingly significant and entrenched impediment to developmental progress.
The attitude of the current President toward the Constitution, the political thinking in Luthuli House and the SA Reserve Bank’s take on hard economic realities were neatly stated, all on the same midwinter South African day, from very contradictory perspectives.
President Ramaphosa knows that his drive to attract $100 billion or more in critically-need foreign investment or loans will flounder if investors and World Bank or IMF officials get a full whiff of the multiple, highest-level threats to the rule of law in post-apartheid South Africa.
The internationally accepted World Justice Project definition of the rule of law emphasises matters of vital interest to those contemplating investments anywhere in the world. According to the WJP, the rule of law has four main elements:
The government and private actors are accountable under the law.
The laws are clear, publicised, stable, and just; are applied evenly; and protect fundamental rights, including the security of persons and property and certain core human rights.
The processes by which the laws are enacted, administered, and enforced are accessible, fair, and efficient.
Accessible and Impartial Dispute Resolution
Justice is delivered timeously by competent, ethical, and independent representatives and neutrals who are accessible, have adequate resources, and reflect the make-up of the communities they serve.
The ANC’s “national democratic revolution” (NDR), as extolled by Magashule, is inspired by the Russian revolutionary Vladimir Lenin, who mounted the barricades in Moscow more than a hundred years ago, and also Karl Marx and Friedrich Engels who wrote the “Communist Manifesto”. The South African Communist Party was intrigued by the particular form of colonialism practiced in South Africa, where the colonialists and those colonized ended up living in shared space.
This “colonialism of a special kind” had to be countered by a two stage revolution, the SACP prescribed: first seize political control (that sort of happened in South Africa’s first non-racial democratic election of 1994, absolutely necessarily) and then take over the economy in the “second stage of revolution” (starting around now) in which economic freedom comes to the masses via “radical economic transformation”.
The ANC NDR is the inspiration for Comrade Magashule’s consistent railing against “white monopoly capital” and “international capital.” Doctrinaire Marxist-Leninist theories, in which dictatorship of the proletariat is to inevitably emerge globally including in South Africa, have not succeeded anywhere that they have been tried in the world.
A look at NASA’s “The Koreas by night” website tells the objective observer all one needs to know about the relative success of doctrinaire communist theory in practice. Economic powerhouse South Korea is illuminated uniformly whereas revolutionary dictatorship North Korea is a dark hole of nothingness, on any night of the year. More chillingly, pre-school children in North Korea are an average of 5 inches and 20 pounds smaller than their South Korean counterparts.
The ANC’s doctrinaire Marxist-Leninist NDR is largely responsible for the perilous state of the South Africa polity and economy today. The tri-partite alliance that espouses it (the ANC, the South African Communist Party and the Congress of South African Trade Unions or COSATU) has been dominant in South African politics for decades, and in power for the last 25 years.
Having been in power so long, it is surely ridiculous (whether in African or any other terms) for the ruling ANC to still be talking revolution. Some analysts say the revolution ended with the pragmatic, investment-compatible Growth, Employment and Redistribution or GEAR policies introduced by the administration of South Africa’s second democratic president after Mandela, President Thabo Mbeki. Both Mandela and Mbeki are now being accused by the arch-proponents of the NDR and “radical economic transformation” of having been “sell-outs” to white capital and internationalist capitalism.
Mandela is not alive to reply; Mbeki’s self-defense is structured in pragmatic social democratic terms while acknowledging the ANC’s revolutionary foundations. Others, like the late ANC stalwart Professor Kader Asmal called for the scrapping of the ANC NDR long after Mbeki fell from power and grace.
As the controlling political party and governing movement for a quarter of a century, the ANC insists that its NDR is compatible with South Africa’s new non-racial, democratic constitutional order under the rule of law. This assertion is simply delusive.
This can best be demonstrated by comparing the constitutional-democratic way forward envisioned for South Africa at the time of the 1994 transition from apartheid dictatorship to non-racial democracy on the one hand, with the realities of the ANC NDR as they have emerged during the subsequent 25 years on the other.
In the discussion that follows, the way of the ANC NDR is presented in italics to contrast it from the pathway laid out in the 1996 post-apartheid democratic Constitution and Bill of Rights which came into effect in February 1997.
The new South African Constitution affirms its status as the supreme law of the country in its very first Section. Upholding the rule of law is at the core of the oath of office of all politicians in SA. Like the Constitution, the rule of law, which was so grievously subverted and trampled during apartheid, is declared to be supreme.
Loyalty to the revolution is the supreme motivation of the cadres — loyal card-carrying members of the governing ANC-Communist Party-COSATU alliance — of the ANC NDR. The answer to the question “Which comes first, the ANC or the Constitution?” is always unhesitatingly given as “The ANC.” Notwithstanding his solemn Oath of Office to uphold the Constitution, South Africa’s third President Jacob Zuma from 2009 to 2018, was brutally frank about his priorization of the ANC over the Constitution in an answer to a direct question about this in Parliament in 2012.
The rule of ANC Luthuli House party bosses trumps the rule of law in practice. The party proportional representation list system – which determines who will get elected to National and Provincial Parliaments and accordingly govern the country – is controlled solely by ANC party bosses at Luthuli House. Those who “vote their conscience” are unceremoniously relieved of their position on those all-important party lists of candidates for parliamentary, provincial and municipal office. Expulsion from the party summarily ends the tenure of office of any parliamentarian, and the next person on the ANC list is simply substituted for the dismissed representative.
To the South African electorate, the U.S. and U.K. notion of locally-elected national, state or province and municipal representatives that they actually choose, can and do see and meet, and hold fully accountable locally is a fantasy notion: there is only one electoral district for national, state, and municipal levels, and it’s named Luthuli House. The Movement decides which loyal ANC cadres will hold which governing office (and also which civil service positions) right across the nation, wherever the ANC gets a majority vote.
True constitutionalism entails putting in place checks and balances on the governmental exercise and possible abuse of power, with effective oversight of the executive by the legislature as a cornerstone of the system. An independent judiciary rules on disputes, interpretation of the constitution and laws, and provides independent recourse and remedies to the people. The judiciary has regard only to the Constitution, the rule of law, constitutionally-complaint enacted laws and ruling judicial precedents — and not to revolutionary dogma, slogans, manifestos and programs.
The ANC NDR is predicated on the tyranny of the majority, a dictatorship of ‘the people’ and the (false) notion that the majority has more rights than the minority, as President Jacob Zuma openly explained to Member of Parliament Lindiwe Mazibuko in 2012 when she was Leader of the Opposition.
The doctrine of the separation of powers between the three spheres of government, executive, legislature and judiciary, is central to our constitutional dispensation.
The concentration of political and economic power in the party is the fundamental goal of the ANC NDR. The ANC strives for “hegemonic control of all the levers of power in society”, the antithesis of the separation of powers in the hands of three co-equal branches of government subject to the Constitution, the rule of law and genuine political accountability.
A secure, impartial and independent judiciary that is answerable only to the law and the Constitution is fundamental in any constitutional democracy. This structure is necessary because the judiciary is empowered to rule on the consistency of laws and conduct with the Constitution. It may strike down as invalid any law or governmental act that is inconsistent with the Constitution.
A tame collection of judicial apparatchiks, loyal to the revolutionary agenda, is what revolutionaries require for the judiciary. Luthuli House revolutionaries rail against the “counter-revolutionary judges” who thwart their plans and programs by striking them down as unconstitutional. They prefer that judges embrace the values of the ANC NDR unquestioningly, and look forward to the day when all South African judges regard themselves as loyal deployed ANC cadres of the revolution — as currently do some judges and almost all ANC Members of Parliament, Directors General and officers of state-owned enterprises (SOE’s) such as the Electricity Supply Commission, South African Airways, South African Railways, the South African Broadcasting Corporation (SABC), and perhaps most disturbingly many of the leadership and officers of the South African National Defence Force and the South Africa Police Service.
Six specialized “Chapter Nine Institutions” were established in accordance with the design of that chapter of the Constitution, to implement and maintain constitutional democracy in South Africa. They are required to function without fear, favor or prejudice to support and strengthen constitutionalism in the new South Africa. Ch9 institutions are the Public Protector, the Commission for Gender Equality, the Commission for the promotion and protection of the rights of cultural, religious and linguistic communities, the Electoral Commission, the South African Human Rights Commission, and the Auditor General. The framers of the South African transition to a non-racial constitutional democracy were determined that in addition to three co-equal branches of government under the rule of law, six additional strong constitutionalized institutions were essential to provide fulsome protection for the post-apartheid public interest.
The ANC has deployed its most loyal revolutionary cadres under the ANC NDR in most of the Chapter Nine Institutions to do the bidding of Luthuli House without regard for the Constitution and with an eye on the unfolding and entrenchment of the NDR revolutionary agenda. At this time, the incumbent Public Protector Busisiwe Mkhwebane faces suspension, impeachment, disbarment from the legal profession, criminal charges and an internal investigation into her maladministration of her own office, and has been found to have perjured herself before the apex Constituional Court and other high courts.
The Constitution peremptorily requires the appointment of public servants who are ethical, unbiased, fair and equitable in their work. They must objectively deliver services to the public and faithfully carry out the lawful policies of the government of the day.
The ANC NDR actively deploys its revolutionary cadres in the public administration, without regard to the merit of non-cadres. This “cadre deployment” is done to secure hegemonic control of the executive, public administration, SOE’s and other institutions. The conflicts of interest that this system sets up undermine good governance and effective service delivery.
Unsuitable cadres at best have consultants appointed to do their work while they sleep at their desks, dreaming of the revolutionary utopia; at worst they have been central players in state capture, grand corruption and the massive plunder of public funds and assets.
The unconstitutionality of cadre deployment in the public administration and the state-owned enterprises does not deter Luthuli House from “recommending” (and effectively thus anointing) its favourites for national Cabinet and office at all other levels of the state.
The Constitution contemplates a multi-party democracy in which the economy is of a mixed nature, with strong emphasis on social democracy in the form of a state which “must respect, protect, promote and fulfil” the fundamental political, social and economic rights guaranteed to all in the Bill of Rights – surely pressing business after decades of institutionalized apartheid oppression and gross inequality based outright on race.
The ANC NDR aims to establish an order in which the dominant political party asserts its hegemony; the party and state collapse into one; and a pure socialist revolutionary nirvana emerges in a manner not beneficially established anywhere in the world in any country in which it has been attempted.
Open, accountable and responsive governance are required by constitutionalism, and these values are basic requirements for governance and democracy in the new South Africa.
The ANC NDR is pursued in secret behind the closed doors of Luthuli House, where opacity, duplicity, “dexterity in tact” depending on “the balance of forces”, and a complete lack of accountability to the people and the Constitution are hallmarks of its openly revolutionary modus operandi. If there is any accountability at all it is solely to Luthuli House and not to the Constitution. There is little responsiveness to the needs of the people as can been seen from the disastrous state of service delivery in education, healthcare, housing, and security by both police and defence forces.
The 2012 police massacre of 34 of mine-workers at Marikana; sprawling nation-wide impoverished “informal settlements” consisting of shacks with few basic amenities; the Life Esidimeni deaths of over 140 mental patients in 2016 who were uncared for and essentially died of neglect; massive, rampant and unchecked corruption at the highest levels of government and business; “state capture” in which even appointments of national Cabinet Ministers were determined and dictated by a corrupt cabal of foreign-born businesspeople and unelected cronies; kleptocracy, gangsterism, taxi wars, unsafe trains and electricity shortages and black-outs; and the open personal sale by ANC-deployed SOE cadres of public assets such as portions of railway lines all characterize the ANC NDR.
Oversight of the activities of the executive by a Parliament willing to hold the elected and appointed accountable, and to hold their feet to the fire of fairness, impartiality, honesty, un-corruptablility and accountability is the way of the new Constitution. Performance is to be measured against the stated just precepts of the supreme law.
In effect, Parliament has been reduced to a meek rubber-stamp for the executive and Luthuli House; it is flaccid, ineffective and populated by loyal, compliant and often utterly incompetent ANC cadres, one of whom, for example, testified to the current Justice Zondo Commission of inquiry into state capture that she thought “Gupta” (the family name of the notorious cabal of Indian-born brothers who led and benefited to the tune of stolen billions from “state capture” during the immediately past nine-year Zuma presidency) was an acronym not a surname.
Non-racialism and gender equality are foundational values of the new Constitution in force since February 1997.
Identity politics, traditionalism and tribalism, male patriarchy and divisive nationalism are all used and abused by the ANC and its NDR to promote its “hegemony over all levers of power” agendas; the LGBTQI+ community (and other still-marginalized and stigmatized groups) are involved in an ongoing struggle for recognition of their fundamental rights.
The Constitution promises respect for human dignity, the promotion of the achievement of equality and the enjoyment of the rights and freedoms set out in the Bill of Rights.
Under the ANC NDR the country has actually seen an increase in human misery since 1994 due to structurally high unemployment, attributable in part to the un-employability of the uneducated unskilled youth, persistent grinding poverty and inefficiency in government. Incredibly, South Africa’s sky-high Gini co-efficient has risen, not fallen, due to the exacerbation of economic inequality after the end of apartheid during ANC NDR-inspired governance. The rural and urban poor remain as oppressed and impoverished as ever they were under apartheid.
Section 25 of the Constitution entrenches respect for property rights.
The ANC NDR is bent on confiscation of privately-owned land, the nationalisation of what it calls “the commanding heights of the economy” and the expropriation of property. The official ANC battle-cry, along with support from the improbably-named Economic Freedom Fighters led by the red-bereted Chavez-admiring “Commander in Chief” Julius Malema, is “Expropriation Without Compensation” (EWC) with an eye on illegitimately held (that is, foreign- and white-owned) assets being nationalised. Under the same thinking, calls have been emanating from the ANC for the nationalization of the South African Reserve Bank, the nation’s central bank.
The inculcation of a culture of respect for fundamental human rights including political and socio-economic rights is a central aim of the new South African Constitution.
The march of the revolutionaries does not have regard to the niceties of a human rights culture. The ANC NDR must be advanced by all available means to secure the hegemonic control of all levers of power in society. Many ANC revolutionaries are at the heart of state capture. They see it as a way to advance the NDR — and themselves.
Numerous books written by investigative journalists and others, high court judgments and reports have been written about their nationally corrosive and debilitating exploits. But the limping criminal justice administration does nothing, mainly because it is significantly captured itself and is thus also a kleptocracy- and state capture-protecting lever of power in the hands of loyal ANC cadres.
Freedom of expression and free and independent media are guaranteed by the Bill of Rights. South Africa’s press is playing a key role in exposing state capture and grand corruption.
Some state capture and kleptocacy exposé journalists have been threatened. The SABC has been all but completely captured by ANC NDR cadres. The mooted establishment of a censorship body called the Media Appeals Tribunal, the formation of a propaganda arm for the ANC NDR via the launching of the New Age newspaper and the ANN7 television channel, both creatively funded with rigged tenders and the publicly-funded takeover of Independent Newspapers (now neither independent nor newspapers) mark the progress of the ANC NDR and the unlawful abuse of public funds to achieve its revolutionary ends.
Access to information is a right guaranteed to all according to the Bill of Rights and the Promotion of Access to Information Act.
Instead, a far-reaching secrecy bill, surely inconsistent with the Constitution, awaits signature on the desk of the President.
The notions of equality before the law and non-sexism, read with the provision in the Constitution that it trumps customary tribal laws that are inconsistent with it, ought to have been accompanied by an improvement in the lot of the rural poor living in the former apartheid “homelands”.
An unholy alliance between traditional leaders and tribal kings and the more opportunistic elements in the ANC NDR has spawned the Traditional Courts Bill and now the so-called “Bantustan Bills”. Woefully necessary genuine and equitable land reform has been hijacked and perverted by the ANC NDR.
The rule of law requires that there be independent legal professions which self-regulate.
The ANC NDR has secured the unconstitutional passage of the Legal Practice Act into law, depriving the legal professions of their independence, an essential bulwark of respect for and defense of the rule of law.
The Constitution promotes unity in diversity and contemplates affirmative action on the basis of disadvantage.
The ANC NDR prefers the introduction of race-based affirmative action measures, but these measures have left the truly disadvantaged no better off than they have always been. According to the late Inkatha Freedom Party opposition Member of Parliament Mario Ambrosini, the President likens the lot of the “white” population to that of frogs being boiled in slowly-heated water.
Then-ANC Youth League President Julius Malema and now Commander of the Economic Freedom Front party was heard in 2010 to scream at BBC journalist Jonah Fisher: “Get out, bastard! This is a building of a revolutionary party and you know nothing about revolution so here you behave or else you jump,” he said at Luthuli House. So much for unity in diversity.
One could go on and on with such constitution-and-rule-of-law versus ANC NDR/state capture comparisons, unfortunately.
The essential economic structural reforms that the South African Reserve Bank Governor correctly proposes are not going to be put in place while the ANC NDR is the frame of reference for those mis-governing and plundering the country from Luthuli House.
The recent Presidential declarations regarding upholding constitutionalism and the rule of law are going to be perceived to be no more than lip service by astute observers familiar with the diktats of the ANC NDR, the practise of ANC cadre deployment, and the supra-constitutional political and economic hegemony that has been entrenched in South Africa.
New investment in SA would be greatly improved if the ANC were to announce that it has abandoned its revolutionary thoughts and praxis and instead is embracing the letter and spirit of the new Constitution without reservation. How best to implement the values and principles of the Constitution should be the committed business of our politicians and officials of all persuasions. Instead, the ANC NDR is imposed by sleight of hand and the struggle is not for Mandela’s long walk to freedom, but rather for the exercise of power in a way that is aimed at securing a centralized, power-concentrating revolutionary “hegemonic control of all the levers of power in society”.
The progress of the ANC NDR is fortunately being slowed somewhat by strategic public interest litigation in which NDR steps that are inconsistent with the Constitution are sometimes struck down by the courts. How much better it would be for South Africa if the NDR abandoned by those who drive it. A new dawn of secure peace, sustainable social progress and shared prosperity would be possible were that to happen. Elsewhere in the world, honesty, a pragmatic approach to ideology, and merit-based appointments have worked wonders in governance, socio-economic development and human progress, so why not here in South Africa?
South Africa is now at an historic crossroads. Left turn proceeds directly to Failed State Terminal; centre points to the on-ramp to Development and Democracy Constitutional Highway; and right turn shows the way to ANC NDR Dictatorship of the Proletariat (Alt Route to Failed State Terminal).
The international community joined the sanctions and solidarity fight leading to the historic largely peaceful 1990’s South Africa transition from apartheid and white supremacy dictatorship to Mandela’s fledgling non-racial democracy. It needs now to be aware that this heartening global success story is faltering in corrupt, feeble and malevolent hands.
These malevolent actors are attempting to prevent any New Dawn return to the visions of Oliver Tambo, Albert Luthuli, Nelson Mandela, Albertina Sisulu, Helen Joseph and Ruth First among others. They are also subverting constitutionalism, the rule of law and accountability in favour of systemic political and financial corruption, state capture and official crime. They are now also motivated by a quest for impunity for more than ten years of gross misrule, rather than the accountability and imprisonment.
The political and economic well-being and future of not just 58 million South Africans who brought about one of the most remarkable political decolonization transitions in modern history are primarily at stake. Also significantly affected are the 40-plus countries and approximately 1 billion people of the African sub-Saharan region — in which South Africa provides human rights leadership, peace-keeping, and significant social, political and economic regional even continental stability.
The well-respected Democracy Index of the Economist Intelligence Unit indicates that there are currently only 20 fully democratic nations in the world. Numerous states that transitioned since the 1960’s from colonialism to independent status are grossly undemocratic and failing or failed states. The great hope of South Africa and the world at the end of apartheid in 1994 was that Mandela’s South Africa would blossom into a shining light of democracy and development for the post-colonial era of African and other states. The first few years looked good, but sadly the slide towards non-accountability, constitutional circumvention and kleptocracy are now well underway.
What can the international community of democratic states, which invested in South Africa’s liberation from white minority dictatorship, do?
The New Dawn promises and hopes of our fifth President and his beleaguered section of the ANC, and democratically inclined opposition parties, need both well-meaning support and friendly pressure of the sustained intensity that brought apartheid to an end.
Governments and supportive civil organizations of the world’s “D20” of democratic states will hopefully be willing to invest the political, diplomatic and financial effort and funds required for a return to sustainable, democratic, equitable and developmental future in South Africa. If so, they should urgently indicate even require, diplomatically and firmly, that immediate and uncompromising steps now be taken in South Africa to rein in political and administrative non-accountability and impunity, and to restore full observance of the new South African Constitution under the rule of law.
Specific offers should be made to encourage and assist the Ramaphosa administration to recover the billions of dollars of misappropriated funds and assets, and to insist as a condition of support that his New Dawn government bring those ANC cadres and others responsible for grand corruption and state capture to justice.
Finally, all South Africans need to cherish their Constitution, learn its extraordinary content and use its power for good. Those who seek secure peace, sustainable progress and shared prosperity should know that implementing the precepts of the Constitution and the rule of law, and not the revolution, is the best way forward for their country.
A few years ago, USAid funded a limited edition of a handbook on the new South African Constitution produced by Accountability Now. Its second edition is available for free download from the Accountability Nowwebsite, but no funding for millions of hard copies, which should be in every school and township in the country has been provided.
If ANC NDR and Economic Freedom Fighter revolutionary principles are now allowed to trump those of the new Constitution, a dark future, not a New Dawn, looms for South Africa.
Paul Hoffman SC is Director of Accountability Now, a leading South African political accountability and anti-corruption non-governmental organization. He is a Senior Counsel and former Judge of the Bench of Cape Province. He has undertaken major anti-corruption and political accountability advocacy, litigation and inquiry work, and is the author of the book “Confronting the Corrupt” (Tafelberg, 2016).