PISTORIUS, DEWANI AND DOUBLE STANDARDS IN SOUTH AFRICAN JUSTICE

Overseas readers and viewers following the Oscar Pistorius trial are probably impressed by the high standards of South African court proceedings (even if the revelations about police bungling, incompetence and downright dishonesty shocked them). This case, like that of alleged wife killer Shrien Dewani, shows only one side of the coin where the vast majority of victims of serious crime cry out for the justice denied them because of shoddy investigative (including forensic) work, poor prosecution versus good legal defence, and the intimidation of witnesses (especially if strict control is not exercised over the granting of bai)l. At the same time, the constitutional rights of persons accused of crimes, and those who have been convicted, are constantly violated. People are frequently arrested, and may be released without being charged or, or may be denied bail only to have charges subsequently withdrawn. During their incarceration they may suffer abuse and torture. Unlike Dewani, who has been assured that he will be held in a ‘secure unit’, the majority of prisoners risk suffering sexual violence, or even death, in communal cells. The Pistorius trial is taking place a year after his lover was killed but far too many cases drag on for years. with continuing postponements of court cases. Whatever the outcome of the Pistorius and Dewani trials the families of victims will at least achieve a measure of closure. That closure is seldom available when the police are the perpetrators, or when the victims lack public visibility because they live in rural areas and/or are poor.

Continuing police abuse
In 1992 the then apartheid police minister was castigated because 114 people had died in police custody. According to latest IPID report, over double that number – 275 – died in custody during the 2012/13 year (431 people died in police action). Why has this minister not been censured? Media reports of extreme police brutality are probably the tip of the iceberg. KZN Monitor is currently following up a case in the south Durban region in which four victims were arrested and were allegedly abused.. One man died. Those who survived were released without being charged.

Without constant follow up by family and/or human rights defenders , feedback to families of people killed by the police is usually tardy or non-existent. The family of Nqobile Nzuza who was shot dead in Cato Crest six months ago have reportedly heard nothing from the investigator – despite the availability of witnesses, ballistics evidence, a private autopsy, and (presumably) police records regarding the identity of the police members deployed to the area.

However, no matter how much trouble victims, and those who intervene on their behalf, take in their quest for justice, they are often left wondering why they had even bothered in the first place. In
2012 KZNMonitor reported abuses by the TRT (Tactical Response Team) of dozens of victims in the Creighton/Himeville/Umzimkhulu region. One of those who did not rest in his quest for justice for both himself and the other victims was Thabiso Zulu. He appears to have suffered abuse because he challenged this illegal police conduct. As a consequence of severe threat and intimidation to himself and his family he went into hiding, which impacted seriously on his familial and financial circumstances. His case was the only one taken over by IPID but, by then, crucial evidence in the form of CCTV footage had not been retrieved, and had been destroyed. Nor did the investigator take a statement from a witness who had been threatened. There were constant delays in holding identity (ID) parades but eventually alleged perpetrators were identified, and one was charged. When the case finally came to trial two years later witnesses who had identified the policeman were – given the time lapse -unable to confirm that he was the same man they had identified. Nor could they describe exactly what his role had been – which is hardly surprising, since Zulu had been attacked by a group of police, who kicked, and hit with the butt of a gun and open fists by a group of police.. The court accepted that Zulu had been abused but was unable to confirm the identity of the specific police member. Recommendations by IPID about disciplinary action were ignored by the police. Insofar as the other dozens of cases are concerned, police management failed to co-operate in the holding of ID parades so the matters never went to court. No action was taken against them.

Rural areas
The Nombika family, who fled their rural home near Highflats in August 2013 following abuse from community ‘law enforcers’, and threats from the local traditional leader, has not been able to return home. The family has split up with children staying with relatives in order to attend school elsewhere. After intervention by the SAPS Cluster office, Mr Nombika opened a case against those who had assaulted him. However, the case has been withdrawn because some of the witnesses could apparently not be traced. Despite the hardship he and his family continue to suffer, Mr Nombika fears to return home because, before he himself was abused, his son was murdered and the perpetrators have not been brought to book. No action has been taken against the prominent traditional leader who ordered the Nombika family from the area, nor has there been any response from the relevant provincial department to the complaint about the chief. This appears yet another case in which errant leaders are treated with kid gloves by the government. An independent observer at the community meeting called by the SAPS cluster office gained the impression that the police were trying to protect the image of the chief.

In some areas cases of abuse of women and children may be reported to the local traditional leadership, and no further action is necessarily taken. Leaders would benefit from training in referral and follow up of such cases. Some chiefs are alleged perpetrators of such crimes by engaging in the practice of ukuthwala (abduction of young women). Despite the traditional courts bill having been withdrawn by parliament it seems that the government may well bow to pressure and resurrect it after the elections. Traditional leaders should only have ceremonial powers , as is the case in virtually all other African countries. Any moves by the government to give these leaders more powers than they already have would raise questions about its commitment to democracy – as opposed to feudalism. The devolution of political power to chiefs subverts democracy.

How can the majority of South African’s have confidence in the criminal justice system, given such glaring discrimination in the way that investigations and court proceedings are handled?

FREEDOM DAY 2014 : TWENTY YEARS OF FREEDOM – AND OF VIOLENCE

As the first democratic elections loomed in April 1994 South Africa was on a knife edge, with raging violence threatening a slide into civil war. The source of the tensions lay in the demands of conservative groupings for regional autonomy as opposed to the interim constitution agreed to by the ANC and NP. Amidst threats of election boycott, politically contested townships and black rural areas especially, but not exclusively, in KZN, were wracked by state-sponsored violence. In April 1994 alone, despite a State of Emergency, at least 338 people died in the province. Gradually all the election opponents, agreed to participate, the last being the IFP, which announced its decision days before the elections. There was a collective sigh of relief when the elections proceeded relatively peacefully. However, political killings continued afterwards. Between May and December 1994, there were at least 640 such deaths in KZN. This pattern was to continue for the rest of the decade, with over 4 000 recorded deaths between April 1994 and the end of 1999. While the political death toll, and murders generally, continued to decline in the new millennium, and each subsequent election was more peaceful than the previous one, South Africa has continued to experience exceptionally high levels of violence for the past twenty years.
As well established patterns of political and taxi-related killings continued after the elections the most noticeable impact of violence on the lives of all South Africans was that of a general criminal nature (all violence is, of course, criminal). Townships and other deprived areas country-wide had long been havens for criminals – which had led to the establishment of vigilante groupings in Durban townships in the 1970s. With the eruption of political violence and a massive influx of guns into those areas in the 1980s and 1990s, visible, violent crime also spread rapidly to the ‘whites only’ areas which had, hitherto, been relatively secure. Protest action, which continued after the advent of democracy, has, over the years, become increasingly violent. There is also a history of violence on the mines, including in the Rustenburg area made notorious by the 2012 Marikana massacre. Long standing organized-crime networks continued and expanded, with increasing reports of drugs such as mandrax flooding townships and rural areas
Farm attacks, while not a new phenomenon, carried on, and appeared more conspicuous. Following claims by farmers’ associations that they were politically-motivated, as some had been during the apartheid years, the then Minister of Safety and Security established a research committee to investigate the phenomenon. Its 2003 report, based on exhaustive research, failed to find any evidence of political orchestration. However, in areas farmed by previously disadvantaged small-scale farmers such as Mangete (near Mandeni) and Nqabeni (near Harding), criminal invasions of land, orchestrated by local traditional leaders, took place, and were accompanied by countless criminal acts of violence, including attacks on the farmers themselves and the burning of their property and crops.
That South Africa had exceptionally high levels of violence against women and children, including rape – even of babies – had become apparent by the 1990s. Political violence and the climate of ungovernability in many areas fuelled the rape epidemic, with young ‘soldiers’ demanding sexual favours as their right, and using rape as a weapon against political enemies.
By the late 1990s it was obvious that there were serious problems with the criminal justice system, especially policing. The amalgamation of the different police forces (homelands and the former South African Police) had been fraught with problems and the supposed transformation of the service was handled very badly, with disastrous, long-term consequences. In far too many cases diligence and experience were overlooked and members were promoted to management positions beyond their levels of competence. Many members with long period of unblemished service – especially indigenous African – left the new SAPS, impacting badly on components such as detective services. Appalling police brutality was manifest in continuing abuse, torture, deaths and killings which, if anything, have increased noticeably in the past few years.
It is against this background of unchecked criminal violence that the continuation of political killings, should be seen. Sporadic killings of this nature have continued all over the country, with different dynamics, but KZN has borne the brunt of this type of violence, especially during the first five years of democracy.. During this time tensions between parties continued, especially during the initial years when national and provincial constitutions were being finalized. In 1997 the relationship between the IFP and the ANC started to improve, with continuing peace talks between the leadership of the parties (although there is no evidence that these talks impacted on what was happening in violence-torn communities where the political killing business continued as usual).
It was excellent detective work which rapidly reduced high violence levels in Mandini and Mtubatuba, and the repercussions of the Shobashobane massacre, in December 1995, which had a major impact on the continuing killings in the Izingolweni and KwaXolo (Margate) areas. Following dozens of killings around Mandeni in 1995 a small team of detectives under former Goldstone investigator Mandla Vilakazi soon made arrests which led to High Court convictions The same team arrested the key warlord in Mtubatuba and his hitmen. The warlord was killed while on bail (for the fourth time) and, during the high court trial of his henchmen it was confirmed that they had been assisted in their attacks by members of the Umfolosi based Stability Unit (who were also implicated in cases of serious abuse in many north coast areas). Following the Shobashobane massacre there was a major spotlight on the police (who had failed to protect the targeted community), especially when a Commission of Enquiry held hearings. Several key warlords were killed and the areas stabilized. While the conflict in these areas had been between the IFP and the ANC, events in Richmond in the late 1990s involved ANC supporters and those of the late Sifiso Nkabinde, a former ANC warlord who had moved to the newly formed UDM. While the truth of what really happened in Richmond remains to be told there is enough evidence to show the flames were being fanned by members of the police and intelligence operatives.
Violence linked to politics has continued up to the present, but has decreased. Potential flashpoints include Durban hostels, Estcourt and the Ulundi/Nongoma area. Although an estimated 64 politically-linked killings have taken place in the past four years the decline in the past decade has been noticeable. Defining what constitutes a political killing has become increasingly difficult because of factors such as links between politicians and taxi operators and, in some areas, the alleged involvement of some politicians in drug dealing. Intra-party conflict has become increasingly common, especially as elections approach and there is competition over places on party lists. Politicians exposing corruption in their own parties also risk being killed.
Two factors are integral to the continuing violence in this province – the ready availability of weapons and continued paramilitary training, including in Macambini and Mahlabatini in the 2006-2008 period. Whether these recruits are implicated in political, taxi, or other hits is not known.
South Africa remains an abnormally violent society and, without fundamental structural change, there is little light on the horizon. As long as children grow up as victims of, and witnesses to, abuse, without suitable male role models, and single sex hostels are not replaced by family accommodation, the current cycle of violence is likely to persist. Policing has continued to deteriorate – markedly so in recent years –and brutality and corruption are endemic. If nothing is done, urgently, to remedy policing ills violent crime will continue to pay – and vigilantism will continue to undermine the rule of law.

LET’S HAVE SOME PEACE AND GOODWILL AMONG TAXI OPERATORS : FEARS FOR THE SAFETY OF DALISU SANGWENI

For as long as there has been taxi violence in the KwaDukuza/Maphumulo/Kranskop region there have been allegations (some from within the police) of collusion between taxi operators and certain police members who are believed to take kick backs from the taxi bosses. Taxi problems are intra- as well as inter-association. In KwaDukuza a number of operators allege that they faced death because they refuse to pay protection money to Stanger Association bosses. One of these was Nkosinathi Xaba who, in March 2010, made a statement to the police about being under threat of death from taxi men operating in collusion with the police. Shortly afterwards he was shot dead by a police member who has never been brought to book. A number of his associates, including Dalisu Sangweni, have been keeping a low profile since then. Sangweni now claims that he is in serious danger of being killed by a Stanger Taxi Association official, M, acting in collusion with the police.

M has apparently opened a case of attempted murder against Sangweni at Kranskop. Sangweni, who claims he has not been in Kranskop for years, firmly believes that he will be arrested and killed by members at that station acting in collusion with M. He says this is the fourth spurious case that M has opened, or been involved in, against him. The first, a case of murder, was thrown out of the high court. The other cases, of attempted murder, were also withdrawn. There were attempts to kill him when he went to court, says Sangweni.

In September 2012 Sangweni was shot and injured near the KwaDukuza taxi rank. Other operators with him narrowly escaped injury. One of them was Nkosinathi Mthethwa, who was shot dead earlier this year. Following the shooting Sangweni’s associates went to report to KwaDukuza station where, they allege, they were followed by the men who shot them, including M. The cases which were opened are under investigation by the Taxi Task Team but there have been no arrests. M is also alleged to be implicated in the recent violence between the Stanger and Dolphin Coast association.

Sangweni is not the first taxi operator to claim that arrests are orchestrated in order to kill them. The station commissioner at Kranskop, the Cluster Commander at Greytown, and Provincial and National SAPS management have been apprised of Sangweni’s fears and asked to ensure that any arrest should only take place in the presence of Sangweni’s lawyer, and provided there is sufficient evidence. If it is necessary to arrest Sangweni they have also been asked to detain him in Durban or Pietermaritzburg.

Sangweni’s fears are yet another indictment of the lack of trust by far too many South Africans in the police – a lack of trust that, for some, is so extreme that one’s life is seen to be in danger. The context in which this case against Sangweni has been opened is one in which the police frequently arrest people without sufficiently good reason. It is also one in which there is evidence of police complicity in taxi violence. When, in 2008, 42 guns which were exhibits in taxi-related cases were stolen from the kwaMaphumulo station a senior police source confirmed that it must have been an ‘inside job’

VIOLENCE AND HUMAN RIGHTS IN KZN :A 2013 OVERVIEW

Crime-weary South Africans need no reminding about the ever-present threat of violence. In the work done by KZN Monitor this year there are, however, three areas of particular concern relating to policing, land rights abuses, and political intolerance which, if incidents in 2013 are anything to go by, may well bedevil the elections scheduled for 2014.

Policing and the administration of justice
On a positive note there appears to be a very slight improvement in police accountability manifest in somewhat better responses from police management to issues drawn to its attention. However, this improvement applies only to some stations and clusters, and does not appear to emanate from any change on the part of provincial management. It is only when matters are drawn to the attention of the national commissioner’s office that there is any response from province. It is significant that the provincial MEC found it necessary to appeal directly to the national office in addressing political violence and policing problems in Estcourt recently.

However, there is still far too much abuse of power by police members, including through malicious arrests. While there have been a number of reports of victims of such arrests winning damages from the police poor people – the majority of victims – lack the resources to pursue this option. Mumsie Msomi was arrested recently following a protest at Ndwedwe, together with her disabled brother – allegedly because she had told members of Public Order Policing Unit to stop harassing her brother, who walks with two sticks (they ordered him to run). She was distraught at being locked up because she had a baby at home, and elderly parents to look after. Following intervention by Monitor the police agreed to release the siblings on warning and the following day the charges were withdrawn. This is but one of countless such cases.

Killings by the police continue unabated, with the 2012/2013 IPID report showing 44 deaths in custody and 102 people killed in action in KZN. In a properly functioning democracy the Minister for Police would long since have done the honourable thing and resigned. To make matters worse, follow ups by IPID leave much to be desired. When seventeen year old Nqobile Nzuza, who had gone to see an early morning protest by Cato Crest residents was shot dead by the police in September it was three weeks before an IPID investigator collected cartridges picked up by Abahlali members, whose lawyer had already taken statements. Three months laterthere has been no feedback about progress (if any). Similarly, Mrs Leonie Lukin, the mother of Leanne Douglas, who died after the police shot her car in September, has not been kept up to date with investigations, including what action if any has been taken against the police members. According to witness reports the police not only shot the car but failed to assist the victim and proceeded to defeat the ends of justice with an attempted cover up. To make matters worse, the Southport police – to which South Coast station the members are attached – refuse to provide public information about supposed cases opened against the deceased (which might help to explain why they were following her, since it is alleged that she had refused to pay a bribe).

IPID performance is extremely disappointing – but one can hardly expect good morale at the unit given that key appointments are acting, and to which the government seems determined to appoint a totally unsuitable candidate – Robert McBride, who is not a lawyer, and who has a poor management track record – as national head. IPID should not fall under the Minister for Police, but should be appointed by, and accountable to, an independent body headed by a judicial officer.

Despite legislation, the police ignore IPID recommendations, as in the unit’s call for internal disciplinary action against TRT members who abused Thabiso Zulu (see 2012 reports). Almost two years later the criminal case is in court, but, since witnesses have dispersed and there are fears that they may have been intimidated it may well be yet another case of justice delayed is justice denied. Before the case was handed to IPD the original investigator failed to take a statement after a witness was intimidated, and also failed to retrieve crucial CCTV footage of the incident. The Zulu matter is only one of dozens of TRT cases which has progressed to court. Others have ground to a halt after olice management failed to co-operate in the holding of ID parades.

Abuses by traditional leaders
As the regressive Traditional Leaders bill lurks in the parliamentary background leaders continue to abuse their powers with impunity. Mpumuza near Pietermaritzburg is one of the areas where land historically belonging to a local family has been sold to outsiders by an Induna (headman). Such transactions fuel tensions and may well lead to violence.

The treatment meted out to the Nombika family of the Highflats area under high ranking chief Phathisizwe Chiliza is absolutely appalling. According to Mr Zikebe Nombika, in August, members of the local ‘community law enforcement’ group Isikebhe accused him of stealing a goat, tortured him and others, and stole one of his cattle. As they tried to extract a written confession of stocktheft from him they continued to abuse him, in collusion with the local induna and chief. The police refused to intervene. Mr Nombika was then allegedly accused by the chief of witchcraft and ordered to leave the area. In fear of his life he, his wife and six children deserted their home and cattle and have taken refuge elsewhere.

This case raises extremely serious questions about these community law enforcers whose existence is sanctioned by the provincial Department of Community Safety, and the failure of the police to take action against them and the traditional leadership when the law is broken. This matter has been drawn to the urgent attention of the MECs for Traditional Affairs and Policing, but there has been no response. However, the SAPS Cluster Commander at Margate is following the matter up, and has interviewed Mr Nombika.

Political intolerance
As political tensions, and outbreaks of violence, continue in some areas (hostels, Estcourt), there have also been incidents in which party representatives and members have tried to implement ‘no go’ areas for other parties, or even social movements such as that of shack dwellers operating under the Abahlali banner. This lack of tolerance was shown in the conduct of the mayor of Durban and the MEC for Health in Cato Crest who addressed what was supposed to have been a community meeting in June in their political capacities. Co-incidentally, housing activist Nkululeko Gwala, whose removal had been called for, was shot dead after the meeting (see 2013 Cato Crest report).

In November, MK veteran and former ANC and COPE activist Phillip Mhlongo, visited the memorial to those slain in the December 1995 Shobashobane massacre while he was in the area for a funeral. He was attacked by ANC members – because he is now a member of Julius Malemna’s EFF (Economic Freedom Front) and was wearing the party’sa red beret. He required medical treatment but was was saved from further harm by the intervention of the local councillor and the police.

Prospects for 2014
Insofar as crime is concerned there is little light on the horizon and those who can afford it will take what refuge they can behind high walls, electric fences and private security. The poor will continue to suffer the worst, especially in rural areas under authoritarian leaders and ineffectual and/or inadequate policing. Improvement will require, at the very least, a transformation in crime intelligence and detective services, and vastly improved conviction rates for the bosses of the drug and hijacking syndicates .

If nothing is done to drag traditional leadership into the democratic age the rural poor will continue to suffer – especially if the Traditional Leaders bill is resurrected and passes parliamentary muster (see 2012 report)

Given continuing levels of political intolerance, and corruption within parties, there will doubtless be a degree of intimidation and incidents of violence in the lead up to 2014 elections. The main areas of competition are likely to be between the IFP and the NFP, and the ANC and EFF, with the latter party probably posing the greatest threat to the party governing the province and country. However, in the unlikely event of President Zuma being recalled, provincial dynamics would change significantly.

VUSI PIKOLI, THE SCORPIONS AND THE FALL OF SELEBI

When Advocate Vusi Pikoli assumed office as the National Director of Public Prosecutions in 2005 he was handed a poisoned chalice in the form of Directorate of Special Operations (DSO), popularly known as the Scorpions. From excerpts from his recent book My Second Initiation published in the media he does not seem to have understood the nature of the beast he was burdened with. Nor does he seem to have done the necessary follow up after being warned about security breaches – not only by the then national SAPS commissioner, Selebi (then under investigation by the DSO) but also by the National Intelligence Agency (NIA). As a consequence he shows no insight into the lack of co-operation he received from Selebi when the Directorate required documents from the police. Nor did he take heed of the cautions urged by the minister to whom he was responsible and the executive arm of government in expediting the Selebi prosecution without considering possible implications of his arrest for national security. While expressing admiration for the Scorpions, Pikoli’s reported reference to Selebi as an ‘evil’ man is a gross exaggeration. Selebi is a tragic figure , whose arrogance, foolishness and venality – including his failure to discern a serious conflict of interest in his dealings with convicted drug trafficker Glen Agliotti = led to his downfall. However, despite Pikoli’s stated intentions, the organized crime godfathers who had snared Selebi escaped scot free.

PUTTING THE ‘BAD GUYS’ INVESTIGATIONS IN CONTEXT
It was apparently during a project by DSO termed ‘Bad Guys’ which investigated, among other things, the killing of mining magnate and ANC benefactor Brett Kebble in 2005 , that the national commissioner refused to hand over certain documentation to the investigators. Previous reports by KZN Monitor have detailed the serious problems with the DSO – including the inclusion of former apartheid security police members and old guard prosecutors in the unit, its use of highly suspect private security companies for sensitive operations, and its alleged links with foreign intelligence agencies. Examples of its modus operandi, especially its selective leaks to the media during investigations, are given in these previous reports. Its ‘trial by media’ continued with the Selebi case, prior to his arraignment in court after his arrest in September 2007. Those in the unit who had been apartheid operatives would, of course, have been highly skilled in the art of disinformation and propaganda.

Selebi’s loathing of the Scorpions, and the fact that he had made no secret of his determination to re-incorporate investigators into the police, dates back to their malicious prosecution of two outstanding black members of the SAPS just after Selebi took office in 1999 – Director Eric Nkabinde and Captain Sipho Mbele. Nkabinde was then the most senior detective in the province, and Mbele, as head of the team investigating the violence in Richmond, had made stunning progress which, had he been allowed to proceed, would probably have exposed those behind the violence there. These investigations were taken over by the precursor of the Scorpions (IDOC), and Mbele’s work was sabotaged. There are a number of unanswered questions about this turn of events – the removal of a highly successful team(whose work had been praised in the national parliament) and the handing of the dockets to IDOC, whose mandate was not supposed to include political violence. What does seem clear, however, is that it was not opposed by ANC leadership in the province which may have even encouraged it (since appeals to ANC leadership at that time fell upon deaf ears). In fact, one member of the provincial executive had made it clear, before the prosecution, that Nkabinde should take a post in another province.

\The targeting of these two police members was iniquitous, and enraged Selebi. At the time of his arrest Nkabinde was poised to become head of detectives in the province – but his arrest put an end to that. Policing in the province is likely to have been very different – and vastly improved – had he been appointed to that post. The position went to an Old Guard policeman whose conduct, post 1994, did not demonstrate support transformation of the apartheid force. Nor was he as competent as Nkabinde. As a consequence, detective services continued to deteriorate.
Both Nkabinde and Mbele had distinguished careers. It was a team led by Nkabinde (then branch commander at KwaDabeka station) which built a successful case against Samuel Jamile, a member of the KwaZulu Bantustan executive, who was subsequently found guilty of murdering leading United Democratic Front (UDF – desribed as the internal wing of the ANC) supporters in Clermont, near Pinetown, who were opposing the incorporation of the township into KwaZulu.
However, Nkabinde’s detectives were threatened with death so the docket was handed to credible investigators from outside of the area – (then) Captain Frank Dutton (later to head Goldstone and Investigative Task Unit Team investigations) and his partner Warrant Officer Wilson Maghadla. It was they who took the case to court and secured a conviction.

Mbele, then the most senior black detective at Amazimtoti police station near Durban had been the initial investigating officer in the notorious KwaMakhuta massacre case in 1987, when family members of a prominent UDF (United Democratic Front) supporter in the township, Victor Ntuli, were massacred by Inkatha supporters trained by the South African army in the Caprivi. When Mbele made arrests the docket was taken away from him and given to the security police. He himself was harassed and threatened with death for this and other politically-sensitive matters he investigated without fear or favour.

Although totally exonerated of the malicious charges brought by the Scorpions, the outstanding contributions of these two police members were lost to the province : Nkabinde was promoted to the post of provincial Commissioner, Mpumalanga province, and Mbele, totally disillusioned with the lack of transformation in the police, took early retirement.

In the intervening years, between the acquittal of Nkabinde and Mbele in 2000 and the exchanges between Pikoli and Selebi in 2007 – no action whatsoever had been taken against the Scorpions prosecutor behind this malicious prosecution, Chris MacAdam – despite his having, subsequent to the Nkabinde and Mbele matter, contradicted himself under oath in another malicious prosecution, that of magistrate Ashin Singh, There is no indication that he has ever faced any disciplinary action and, according to recent unconfirmed reports, he now heads an ominously named component of the NPA dealing with crimes against the state, despite his obviously not being a fit and proper person to occupy such a position. The failure to act against someone who is clearly unsuited for a prosecutorial role blights the credibility of the DSO – and the NPA. .

SELEBI : PRIDE BEFORE THE FALL

While there were justifiable concerns that the prosecution of Selebi might also have been malicious his trial, and the judgment against him, showed that the DSO case was indeed strong enough to convict him. His own poor performance in the witness stand can have done nothing to support his plea of innocence, especially as he was forced to admit that he had lied about a showing a secret document – which he had had de-classified – to Glen Agliotti.

Prior to his appointment as national commissioner Selebi had been admired internationally for his engagement in issues relating to human rights. However, as in other such placements in former apartheid structures (such as the National Intelligence Agency) his appointment to a key – and untransformed – apartheid bureaucracy would not have been welcomed by many persons on whom he had to rely. While apparently winning his confidence some of these members showed, by their own conduct, that they were set in their old ways. For example, when, in 2002, Supt N, a senior black member in KZN was sidelined on racial grounds for appointment to head a Public Order Policing Unit in the province – despite being eminently qualified for the position – he appealed nationally, to Selebi. Selebi was sympathetic but, correctly (in this instance) delegated the matter to a deputy for attention. Not only was the deputy rude and unsympathetic towards Supt N but he also refused – despite various follow up letters – to return to him a dossier of letters of commendation he had earned for his policing skills in violence torn areas. Co-incidentally this deputy had been a former (supposedly reformed) member of the apartheid security police. He was perceived to be very close to Selebi. Selebi would also have been let down by some of his former comrades who were, like him, integrated into the SAPS without having the necessary capacity for their jobs. Generally speaking, those integrated into the SAPS failed to understand the nature of the policing bureaucracy which, by the end of the 1990s, remained untransformed (a summarized version of a 1999 report ‘The More Things Change – Policing in the New South Africa’ will be available on the Monitor website in 2014).

Central to the case against Selebi was his dealings with Glen Agliotti. He should never, as national commissioner, have been dealing with crime intelligence matters himself but should, as in the matter of Supt N, have delegated the investigations relating to Agliotti and his cohorts to the police’s Crime Intelligence component. His admission that Agliotti was a ‘friend, finished and klaar’ was a damning indictment of his lack of the sense of propriety required of a man in his position – a position which demanded that he maintained a social distance from known criminals. Did he not know that one is known by the friends one keeps?
Having antagonized the powerful and devious Scorpions, and anti-transformation sectors within the police, he was asking for trouble – which he got. In his evidence Advocate Lawrence Mrwebi (a former Scorpions head) argued that the Scorpions had gunned for him, as did former NPA member Prince Mokoledi (who also made serious allegations about NPA members admired by Pikoli) Through his own foolishness and weakness he seems to have walked straight into the trap which was set for him (which is not to condone his actions).

THE REAL WINNERS
Promotional blurbs around Pikoli’s book paint him as a hero who has stood up to a conspiracy against him and won. That is an oversimplification : While the Ginwala Commission which was appointed to assess his fitness to hold office following his suspension found that since the government had not substantiated the reasons it had given for his suspension he should be re-instated. Its findings were, however, critical of him in a number of ways, especially relating to national security issues. As a result of lack of awareness of the broader sensitivities of his office, he needed to enhance his understanding of the security environment in which his office functioned. He had, for example, failed to ensure that all DSO investigators had security clearances and that these were regularly renewed

He was found to show a ‘lack of understanding of his responsibilities ‘to operate within a strict security environment and to ensure that the NPA and the DSO operate in a manner that takes into account the community interest and does not compromise national security’ Also noted was the lack of accountability shown by the DSO to him as the NPA head.

While Selebi has paid the price of his own foolishness there is no indication that organized crime networks linked to Agliotti et al have been neutralized. Ironically, while Selebi’s conviction ended his career in both the police and in Interpol, at least one former member of SANAB, the narcotics arm of apartheid policing whose members moved between that and the security police arm – which was itself linked to drug-related organized crime and the apartheid regime’s chemical warfare programme – is now with Interpol.
Pikoli bemoans the fact that Agliotti and his cohorts walked free which, he emphasizes, had not been the intention. However, he places the blame for this turn of events on his successor, Advocate Menzi Simelani, who removed the ‘Bad Guys’ prosecutor from the case.
In 2011 Stanley Poonin and Stefanos Paparus, accused by Agliotti of trafficking in drugs work R250 million, were acquitted amidst allegations that the state had ‘bungled’ the case.

A recent report by the South African Anti-Drug Alliance, arguing for a re-think on drug policy, including legalization and regulation, points out that despite massive expenditure in its ‘war against drugs’ the conviction rate for drug dealing is woefully low. Most of the convictions are for cannabis (dagga) which grows like a weed in KZN and other parts of South Africa. Cannabis, despite being illegal, is grown legally by the pharmaceutical industry which makes a fortune out of its key ingredient, dronabinol, in expensive drugs used for, among other serious illnesses, HIV and cancer. In the mean time, extremely destructive drugs are traded openly in townships and middle class areas of Durban, amidst well substantiated allegations of complicity on the part of the police.
So the Scorpions, under the de jure (if not de facto) control of Pikoli made no more progress in dealing with serious organized crime
than it had under his predecessors.

However, this unit should never have been dismantled (in what was clearly a political move) – when all that was needed for a re-structuring, with all staff having to re-apply for their positions, and being subject to rigid security checks to eradicate former apartheid era operatives. Pikoli seems to have been in no haste to implement the recommendations of the Khampephe Commission – which were ignored following the change of political guard in 2009 when, ironically, Selebi’s goal of re-integrating investigators back into the police was realized.

Notes
1.Regarding the role of Samuel Jamile in the killings in Clermont see TRC Volume 3, pages 227-228
2.Details of the KwaMakhuta massacre, and the trial of General Magnus Malan, in TRC Report Volume 3 pp 220-223.
3.Report of the Enquiry into the Fitness of Advocate V P Pikoli to hold Office (Ginwala Commission report) at www.info.gov.za
4.‘At What Cost : The Futility of the War on Drugs in South Africa’ by Quinton van Kerken Anti-Drug Alliance (available on web)

POLICING, POVERTY AND RAPE IN KZN

That contested power relationships lie at the heart of the rape pandemic in South Africa is illustrated by exchanges between men overheard in a rural taxi. The gist was that if women thought they had rights men would use rape to put them in their place. Women of all races, classes and ages are victims, and potential victims of rape, with a quarter of the South African male population having admitted to the crime. However, the powerlessness experienced in dealing with it is compounded by the circumstances under which poor women in rural areas live. While the degree to which police respond appropriately to rape is variable in all areas, the logistics of obtaining help in many rural areas – distances from police stations and from medical assistance – delay the course of justice. To make matters worse, perpetrators are found among the ranks of police members themselves. A recent case dealt with by Monitor suggests that some members may conspire with colleagues to defeat the ends of justice.

Rape in rural areas
The obstacles faced by victims living in rural areas are shown in the case of Ms B who, was raped at night in a rural area which falls under Nyoni SAPS, approximately twenty kilometres away. The police were called early the following morning, by which time the victim had, understandably, washed, reducing the likelihood of recovering forensic evidence. After their initial response to the call the police went away, and returned later in the day, with a female member. They then took the victim to the district surgeon at kwaDukuza hospital (about a half hour drive away). Nine months later Ms B has had no feedback from the police, but enquiries reveal that no arrests have been made. There have been a number of rapes in the area this year, and sundry other criminal activities. According to locals, these crimes are perpetrated by strangers who have moved to the area. Those pushing for the establishment of a DNA database in SA argue that it would play an important role in the conviction of rapists. However, in the case of Ms B – and countless other rape victims living in areas even less accessible to police and medical assistance – the delay in accessing a doctor, plus her having washed, minimises the chance of collecting semen samples. Furthermore, so many criminals continue to operate with impunity without being arrested their DNA samples would not be on the data base anyway.

Although there were some delays, the Nyoni police were fairly diligent in their response – in contrast to reports from some other areas. According to media coverage of a visit of the Gender Commission to the Mbazwana (far northern KZN) policing area, families of rape victims have ‘given up’ on pursuing justice through the police, and accept cattle in compensation for rape (which occurs in other areas also). The rape of children and the elderly is said to be widespread. A local activist is quoted as saying that police do not take victims seriously. To make matters worse, husbands may ‘bully and ostracise’ women who report rape – to the extent of women reporting the rape of a child or grandchild may fear losing her husband.

Recent years have also seen a resurgence in KZN (as opposed to the Eastern Cape where it has long continued) of a custom known as ukuthwala which, in the past, involved men abducting young women who had changed their minds about marrying them (as opposed to ukubaleka, in which a young couple had run away together to force their families to negotiate their marriage). Ukuthwala has now become a forced marriage, usually of young/underage women, often with collusion of parents who welcome the monetary compensation. Certain traditional leaders are among those accused of engaging in this illegal activity.

Parents may also push their young daughters into polygynous marriages with older men because of the financial incentives. What amounts to the selling of daughters is not new in impoverished areas. During research in the late 1980s Monitor was told of poverty stricken families in a Midlands area near Pietermaritzburg accepting money in exchange for their underage daughters. Young women are usually powerless to resist their parents because, without jobs and income, they are dependent on them.

It is known that some teachers also take sexual advantage of impoverished female students in their schools, including those who are (in terms of Children’s Act) underage. Even if it is known that teachers are abusing female learners parents may be reluctant to take steps to expose them, in communities in which there is an exaggerated respect for authority figures, and where intimidation is rife.

Rape by police
The report for 2012/13 released by IPID (the police oversight body) showed a country-wide increase in reported rape by police members, with a figure of 24 given for KZN.
This is not a new phenomenon – police members have got away with raping women for years. In the early 1990s, notorious KwaZulu-cum SAP security policeman, the late Sphiwe Mvuyane, kidnapped and raped women (including university students) with impunity. During the apartheid years there were allegations that some white police members raped black women they picked up for influx control transgressions, but such allegations were impossible to verify. Nevertheless the apparent increase in rape by police members during recent years is disturbing.

To make matters worse, such cases may be under-reported. A recent rape of a young woman living in a rural area in southern inland KZN, Ms C, shows that some cases may not even make it into IPID statistics. Under some pretext Ms C was taken in a police van to Pietermaritzburg where she was raped by the police member, who even instructed her to wash herself afterwards. When she returned to her home she reported the rape at the local station and was given a J88 form to be completed following a medical examination. She saw the doctor at the local hospital but the female police member who was supposed to bring the sealed rape kit to the hospital did not arrive, and did not answer her telephone when she was called. The following day Ms C returned to the police station and tried to open a case. The member on duty told her that she would have to go to Pietermaritzburg where the crime was committed – which is nonsense. After hearing about Ms C’s experience later that day Monitor called the station and the constable on duty repeated what he had told Ms C. Upon insisting on speaking to a senior member the cellphone number of the duty officer was provided. He confirmed that a case should be opened, and said he would proceed to the station. However, despite being contacted, the victim did not return to the station. It transpired that the alleged rapist paid a large sum of money to the impoverished mother, on whom the victim is dependent for subsistence.

In terms of legislation all rape cases must be reported by the station to IPID – but if no case is opened nothing further can be done. Suspicions remain that the delaying tactics – the failure to deliver the rape kit, and the refusal to open a case – may well have been deliberate, since it is known that male police members often collude with perpetrators.

Rape : What is to be done?
Alarm bells about rape have been ringing for years but, despite a Ministry for Women, Gender and Human Rights Commissions, annual periods of activism against violence against women and children, and huge funding poured into anti-violence campaigns, the situation is no better and perhaps – with regular reports of rape of babies, as well as the elderly – is even worsening. A solution should include urgent short term interventions, but also a fundamental shift in gender relationships.

Immediate action should include a far closer monitoring of police investigations into rape cases and an improvement in forensic medical services, especially in rural areas. A far more proactive stance in educational issues involving girls and young women is also needed, with strict sanctions imposed against errant educators. The importance of empowering both girls and boys through education – including in comprehensive life skills programmes – cannot be over-emphasised

However, far more fundamental changes in entrenched male attitudes and behaviour towards women is essential – especially in KZN where the legacy of a century of codified not-very-customary law which denigrated the status of women continues to dominate, especially in rural areas. Traditional leadership itself is often (but not always) guilty of suppressing the rights of women. As argued in previous Monitor reports, the importance of strengthening of the family (in its variety of forms) cannot be overemphasised. There is simply no substitute for male role models who treat women and girl children with respect – and finding ways of promoting this ideal should be a priority.

DNA, HUMAN RIGHTS AND BIOCOLONIALISM IN SOTH AFRICA

During the past few months there have been two developments relating to taking and storing human DNA which have implications for people’s human rights, including the right to privacy.  In April a private NPO (non-profit organisation) announced an initiative to take and store children’s DNA and other identifying particulars in a database which could be used in the event of children disappearing.  In June it was reported that a reworked version of an earlier bill amending the Criminal Procedure Act to give the police increased powers to take DNA from suspects, and to establish a national DNA database, was being considered by a parliamentary committee. In August the majority of committee members approved the amended version which will now be considered by parliament.

 These developments take place in the context of a broader move, apparently driven by ‘the north’ to encourage African states to collect and store DNA – including by sending it overseas.

 These moves take place against a background of unparalleled global medical and corporate interest in DNA, an important component of humans’ individuality, which has crucial privacy implications for both individuals and families. It is also a commercially valuable entity which can be cloned and patented.  It is estimated, for example, that commercial developments from the Human Genome Mapping Project account for billions of dollars worth of products per annum. People who supply the DNA do not benefit from its commercial use. The patenting of ‘raw material’ in the form of indigenous knowledge and human tissue is referred to as biopiracy or biocolonialism, and ‘the north’ is accused of ‘bioprospecting’ for it in ‘the south’.  As  David Galton puts it (in Eugenics : The future of human life in the 21st century’ page138)’The slick virtuoso tricks of the globalised industries are appropriating the genetic raw material of indigenous peoples to create considerable wealth for their shareholders’  Like other personal information, DNA is also  of great interest to powerful insurance corporations.

 Taking and storing human tissue, especially by researchers in the fields of HIV and TB, has become commonplace in South Africa. This tissue is often sent overseas – much of it illegally – where its donor owners  have no control over what happens to it, and whether it will be used to develop new and lucrative drugs (which they and/or their governments would have to pay for).

 What safeguards do those entrusting their/their children’s DNA to others have that it will be safe, including from those wishing to use it to enrich themselves? The answer is, with any proposed storage, very little.

 A proposed database for children’s DNA

According to a press eport in April a privately funded NPO called Identi Masses announced that it would be running a pilot programme in the Western Cape to take biometric and DNA samples from children (at a cost to parents), to be stored in a secure vault in Paarl, which could be accessed in the event of a child going missing (i.e. for identification purposes) As well as DNA (taken with a buccal swab), the stored data would include facial photographs, and details of eye colour, the name of the family doctor, and biometric finger prints.  It was not known when the programme would be rolled out in KZN. Educators quoted in the report pointed out that parents would need to be involved, and raised important questions about the legality of what was being proposed.

 Although the spokesperson for the NPO emphasised that storage would be extremely secure, and security checks would be done on personnel, the proposed project is a dangerous one. Paedophiles have shown themselves extremely innovative at infiltrating  bodies (schools, scouting) centred on children, and security checks are only as good as those doing them. If that were to happen even the safety of the children whose details were stored could be jeopardised.

 Such a project is completely unnecessary : If parents want to take precautions in the event of their children disappearing they should be encouraged to store the DNA of their children themselves, including through the retention of their milk teeth. Limited DNA identification is also available from locks of hair.  Furthermore, some parents have already accessed kits to take and store DNA themselves, which is the best possible safeguard for them and their children – including insofar as privacy issues are concerned..

 The DNA Bil

 In 2009 a section of a new Criminal Procedure Amendment Act dealing with the taking of DNA from suspects by the police, and its storage in a national DNA database, was sent back for amendment by the parliamentary portfolio committee considering it.

 The re-introduction of this contentious piece of legislation, which was being debated in May, received so little publicity – even on the parliamentary website – that the cut off date for submissions about it had already passed once media reports (mainly citing its enthusiastic backers) announced its return to parliament. Even forensic experts from the Durban-based Medical Rights Advocacy Network (MERAN), who had made a submission on the 2009 draft, were not informed, or called upon to give expert opinion.

 The bill follows from, among other things, a study of the DNA database systems in Canada and the United Kingdom, and is a big improvement on the original version.  However, serious concerns remain, including about the constitutional rights of individuals and families to privacy, the potential abuse of specimens for personal gain, the lack capacity and corruption on the part of the police, and the sheer costs of establishing and maintaining such a database in a country which has so many unmet developmental needs.

 The bill allows for samples to be taken from suspects for certain types of crime, storing them for three months before destroying them, and retaining only the profiles (so privacy concerns remain).

 The bill assumes that police act in a lawful manner and arrest suspects for good reason.  That is not the case.. KZN Monitor has a vast amount of research material, especially in the form of cases followed up, showing the extent to which people –  especially the rural poor and powerless – – are abused by the police, both physically, and by malicious arrest. Members often arrest people for no good legal reason, only for cases to be dropped or, if they proceed to prosecution, for no conviction to result There have also been cases suggesting collusion between police and prosecutors (e.g. in collusion with a corrupt local traditional leader).

 The Monitor data also shows how, in one community after another, people claim that criminals – even those responsible for serious crimes such as rape and murder – are known, but are not arrested by the police who are, in some instances, accused of colluding with them..

 The police may not even use the powers they already have regarding the use of fingerprints and DNA. When they do, there are multiple problems with the use and abuse of forensic evidence by both the police and the forensic mortuary services run by the Department of Health (especially in KZN).

 Corruption in the SAPS is widespread and the running of its forensic laboratories is no exception.  In September 2012 the police and prisons trade union POPCRU, released  a dossier claiming, among other things, massive corruption at the forensic laboratory, including the sale of parts of its DNA database machine as scrap metal, the theft of narcotics evidence, and the sabotage of evidence for court cases.  Unsurprisingly, it was announced in March 2013 that the DNA machine was not working

 This then is the context in which vastly increased quantities of DNA would be handled if the bill is passed.  In June 2013 the head of the forensic laboratory was reported to be suing junior officers for alleging he was responsible for corruption at the facility.

 Although the legislation allows for an oversight body, it would be responsible to the Minister for Policing. Judging from experience the proposed oversight body will not be effective.  For example, the civilian oversight policing body, has failed conspicuously to deal with police abuses, as has the Ministry of Safety and Security generally (including through the independent police investigative directorate – iPID – which it controls).

 To make matters worse, conditions at government mortuaries in KZN may jeopardise the safe handling and retention of forensic specimens.  Staff lack qualifications for their jobs (so the laws governing the employment of mortuary technicians are being flouted by their employers, the Department of Health). These employees have shown themselves completely uncaring about the treatment of corpses and specimens by switching off fridges during strikes, and failing to maintain proper hygiene standards generally.  There is no indication of any improvement whatsoever since the 2011 KZN Monitor report on the mortuaries.

 Is this database really needed?

Those promoting the bill are doubtless well intentioned and believe that DNA holds the key to solving serious crimes. However, they seem to be out of touch of the realities of crime for the majority of its victims, and just how serious policing problems are – including insofar as they impact on who gets arrested and the collection and preservation of forensic evidence. They also tend to overlook the fact that this evidence is not necessarily retrievable at crime scenes and is easily contaminated.  While not without its own problems the British system, relative to South Africa, functions well, yet DNA evidence reportedly contributes only0,36% to the detection of all recorded crimes. In the UK, DNA evidence in itself is not sufficient to convict, so a great deal depends on good detective work which is in extremely short supply in South Africa.

 While enthusing about convictions, what the bill’s promoters also overlook is the fact that the poor handling of DNA has also been responsible for innocent people languishing in prison cells.

 The costs of establishing and maintaining such a database are also likely to be prohibitive, if the experience of the UK is anything to go by.  Between 2006 and 2009 it cost that country almost GBP4,3million simply to maintain the system

Whatever its merits,  arguing in favour of a DNA database is premature until there has been a transformation in police detective and forensic work, and a marked improvement in the operations of forensic mortuaries. However, having been approved by the portfolio committee the chances are it will be steamrollered through parliament – although prohibitive costs for scant returns may be taken into account. At the very least, parliament should ensure that registered health professionals are in charge of the handling of this human tissue – and that  a credible, independent body, not responsible to the policing minister, has strict oversight of all aspects relating to the database.

 It is a telling indictment of the slow progress to true democracy in South Africa that, unlike the citizens of Canada or the UK, on whose databases the legislation is modelled, those who are potential victims of abuses of the power it gives the police probably do not know of this legislation, or many other pieces passed by the parliament which supposedly represents them (because of the failure of members of that parliament to keep their constituents informed).

 Whether the bil in its present forml passes constitutional muster in terms of individual and family privacy remains to be seen.

Notes

1.See especially ‘In the wrong hands : A DNA database in South Africa’ by Poonitha Naidoo, at councilforresponsiblegenetics.org as well as the submission on the bill to the portfolio committee by GeneWatch

2/David Galton Eugenics : The future of human life in the 21st century  London : Abacus 2002

3.Figures on maintenance costs and conviction rates in the UK from Lirieka Meintjes-van der Walt ‘A South African intelligence DNA database : Paracea or Panopticon’ in SA Journal of Human Rights, Volume 27, 2011

4.For one example of how the poor handling of DNA can result in the conviction of an innocent person see Simon LeVay When Science Goes Wrong  London : Penguin 2008 Chapter 9 ‘Forensic Science : The Wrong Man’

5.Main press articles cited : ‘DNA plan for SA kids’ Daily News 12 April 2013

 ‘Lab a crime in itself : Popcru’ The Times, 12 September 2012;  ‘R75m DNA machine is ‘not working’ Daily News 11 March 2013

‘Cop vs cop in slander spat’ City Press 2 June 2013

6/Regarding ethical issues relating to human tissue and biobanking in South Africa see web-based articles by Dr Aslam Sathar

 

MAKE EVERY DAY A MANDELA DAY : LET’S BUILD A NATION AND HAVE A MADIBA YEAR

Mandela Day 2013 has come and gone, with countless South Africans honouring the great man on 18 July by giving of their time and talents in service to their fellow humans.  By reaching out to all South Africans, including his erstwhile enemies, Mandela prioritised nation-building, so why not continue to honour his legacy every day by placing it firmly back on the national agenda. Almost two decades after he became President our country remains fragmented and preoccupied with the notion of  group ‘differentness’  instilled by apartheid, which Mandela strove so hard to overcome. While lip service is paid to the concept of an African Renaissance, championed by his successor, Thabo Mbeki, the reality is that refugees from elsewhere on the continent are not, for the most part, welcome, and are targets of regular xenophobic-tinged attacks.   Race and ethnicity continue to dominate national discourse. In KZN the ethnic nationalism linked to political violence in the 1980s and 1990s remains a threat, and there is resentment of perceived privilege enjoyed by the sizeable population of Africans of Indian descent by a grouping of black /indigenous Africans.  In recent years the nation-building agenda of Nelson Mandela seems to have slipped from the national agenda.  Let’s revive it and make very day a Madiba Day.

 

South   Africa in the African context :myths and current realities

At an intellectual level support for an African Renaissance remains, marked by an annual festival.  Also popular are references to some supposed pan-African identity – which is often used to justify feudal institutions such as chiefship and fossilised customary law, [1]

 

Of course, despite some wistful thinking on the part of those promoting it, there is no evidence that a common African identity has ever existed.  As Ghanaian author Kwame Appiah notes ‘nothing should be more striking for someone without preconceptions than the extraordinary diversity of Africa’s peoples and its cultures’.[2] Ironically, as many African scholars now realise, contemporary ideas about some mythical African identity rest on colonial assumptions linking ‘darkest Africa’ with skin colour.  As academic V Y Mudimbe argues, the West has been ‘inventing Africa’ for centuries.[3] The extent to which the colonial notion that skin colour defines African identity has been internalised is evident in debates about the meaning of being African in South Africa, and in the use of the derogatory term ‘coconut’ for people who are accused of being too ‘white’. The use of the term ‘African’ remains contested along racial lines, with those complaining of supposed ‘Indian’ privilege saying they are not Africans but ‘Indians in the diaspera’.[4]

 

The reality is that the diversity of Africa has, historically, included that of a racial nature, as people from Europe and Asia have traded and mated with members of the indigenous population for many hundreds or thousands of years. Other forms of diversity include very different economic bases – ranging from foraging (hunter-gatherer) groupings to societies with a long history of urbanisation, and empires. Contrary to the arguments of those promoting traditional leadership, chiefship, is but one of a number of political institutions in Africa, and is certainly not unique to the continent. Nor is ancestral veneration linked to the emphasis on one line of descent a specifically ‘African’ phenomenon, being common elsewhere, including in Asia. In Africa it has continued to thrive, amidst widespread conversion to Islam and, more recently, to Christianity.

 

However, amidst this ‘extraordinary diversity’ there are also common ties which bind South   Africa to the rest of the continent, including historical trade and migratory routes, and the more recent history of shared colonial oppression. Also of great importance is the solidarity of countries all over the continent in supporting the struggles of the liberation movements against apartheid.  The extent of this solidarity is documented in the recently published volume in the Road to Democracy in South Africa series titled African Solidarity.[5]  Many of these countries paid dearly for their support for the liberation movements, including through the military activities of the South African Defence Force in the war against the liberation movements in other African countries, and the economic ravages which accompanied this war – including the SADF’s role in the international illegal trade in ivory and rhino horn and the destruction of wildlife which accompanied it, detailed in the report of the Kumleben Commission of Enquiry in 1996.

 

Despite the lip service to pan-Africanism, there are serious concerns in human rights circles about the treatment meted out by the Department of Home Affairs to those fleeing the threat of harm in other African countries, especially since changes to the law in 2011. Refugees from polarised, conflict ridden countries such as the DRC and Burundi, tell of being treated rudely by officials who do not follow due legal procedures, and living with the ever-present threat of imprisonment and summary deportation. Amnesty International is among those expressing fears that moves by this government department violate South Africa’s international and domestic obligations towards asylum seekers, and deny them their much needed international protection.

 

The hostility faced by many foreigners living in communities all over South Africa also belies political rhetoric about shared African identity and solidarity. This hostility frequently erupts into violence and murder, with perpetrators generally operating with impunity.  One factor mentioned is the apparent economic success of some of the businesses run by foreigners – especially Somalians – who, through their shops, provide a service to community members. Instead of channelling resentment into healthy business competition, the success of hard working foreigners is used as a pretext for attacks, many with clear xenophobic overtones.  The hostility is often overt, as in a statement by The Greater Gauteng Business Forum (an association of small shop owners) : ‘They are here to destroy local business and people, particularly local shop owners, are boiling with anger’[6]

 

The legacy of divide-and-rule in colonial and apartheid South Africa

An apparent resurgence of ‘tribalism’, and, in KZN, what is perceived as ‘anti Indian’ sentiments among certain sectors of black/indigenous African society, must be situated within both historical and current politico-economic context.

 

Apartheid South   Africa was aptly described by historian Leonard Thompson[7] as a ‘pigmentocracy’, with levels of privilege assigned on the basis of skin colour.  One manifestation of this policy was the geographical separation of the races, with cities like Durban having Indian and ‘coloured’ zones providing ‘buffers’ between the white overlords and the black Africans. Education for the different races was perceived to be similarly stratified – the best for whites and the worst for indigenous Africans, with that for ‘coloureds’ and Indians in between. With few exceptions (such as the historic ties between the Natal Indian Congress and the ANC) physical separation of races was accompanied by social separation and isolation – especially after the implementation of the Group Areas Act in formerly mixed areas such as Cato Manor in Durban..

 

Together with these racial divides, it was, above all, the homeland policy which entrenched and reinforced ethnic divisions among the indigenous population (even Soweto was divided into ‘tribal’ zones). The apartheid edifice was built on the colonial policies of geographically defined tribal reserve areas (which became the Bantustans), indirect (top down) rule through politically controlled chiefs, and the standardisation of languages from similar regional, unwritten dialects. The cut off point separating isiZulu from isiXhosa, for example, was the political boundary between what was then the colony of Natal from the Eastern Cape.

 

In what is now KZN (prior to 1994 the province of Natal and the Bantustan of KwaZulu, which were inextricably entwined) all black Africans, regardless of historical origin and culture, were designated Zulu, and decreed citizens of KwaZulu.  Many of these people had never been subjects of the Zulu kingdom, with its heartland north of the uThukela River, tens of thousands (at least) having fled the kingdom and the area south of the uThukela during the military forays of Shaka and Dingane, returning once these raids had ceased.  The far north of the province (Ingwavuma and Tongaland) had never been part of the kingdom; they were annexed by the British government only in the late nineteenth century. Nor had the Bacas, whose membership straddles southern KZN and the Eastern Cape, ever been part of the kingdom. The sizeable Hlubi community in KZN continues to fight for acknowledgement of its distinct identity.  All of these people were decreed Zulus and made citizens of the KwaZulu Bantustan.

 

It was twentieth century events – primarily political – which would shape and consolidate the Zulu identity which exists today. In KwaZulu this identity was reinforced in schools (including through a special ‘Ubuntu-Botho’ syllabus) and (as in other societies) the invention of traditions celebrating Zuluness.  The success of the divide-and-rule strategy was evident by the 1980s, with research showing the dominance of views of personal identity as ‘Zulu’ rather than as ‘black’ (as in being oppressed) or South African.  This identity had also become heavily politicised, with ‘Zulu’ being linked to being a supporter of Inkatha, and Xhosa/Pondo linked to the ANC. These labels featured conspicuously in the State-sponsored political violence which claimed thousands of lives in the latter 1980s and 1990s (documented in detail in early (then) Natal Monitor reports.

 

As a legacy of the recent past, these narrow ethnic identities continued to feature in post-1994 political discourse, seemingly becoming more conspicuous in recent years. Following the removal of Jacob Zuma as Deputy President in 2005, and the corruption charges subsequently brought against him, Zuma’s supporters rode the bandwagon of Zulu ethnicity (e.g sporting ‘100% Zulu boy’ T-shirts when he appeared in court). Speaking in April 2013, at the launch of Volume 6 of the ‘Road to Democracy’ series on the liberation of South Africa, former President Mbeki expressed concern about the pervasiveness of ‘tribalism’, and slogans such as ‘100% Venda’, or ‘100% Tswana’ . During recent political campaigning in Limpopo province, Deputy ANC Chairperson, Cyril Ramaphosa, was asked whether he was ‘Ndebele or Zulu’.[8]

 

In KZN Zulu identity is reinforced by annual cultural festivities which are mixtures of reworked old and newly invented traditions – such as new public rituals linking the female deity Nomkubulwana to virginity testing (formerly the domain of female family members). These include the annual Reed Dance and First Fruits ceremony led by the Zulu monarch, who has also purportedly ‘revived’ the custom of circumcision for young men supposedly done away with by King Shaka (there is no real evidence to substantiate this assertion).  There are also constant references to the ‘Zulu nation’ (despite a nation being a political unit, and South Africa being a republic), and plans are afoot to erect a giant statue of King Shaka, to rival international landmarks such as the Statue of Liberty, on the banks of the uThukela River..  Leading educationist, Professor Jonathan Jansen, correctly points out that the introduction of a mandatory course in Zulu for all students at the University of KZN may encourage Zulu cultural nationalism[9] (and Zulu speaking students on this campus have exhibited ethnic chauvinism towards black African students from elsewhere in the country in the recent past)

 

Since the establishment of the KwaZulu homeland, it had been Inkatha (IFP) which had actively promoted Zulu culture, and used it as a political platform. In the 2009 national elections the party lost ground in KZN to the ANC – a loss apparently linked to the latter party being led by a Zulu president. Crucial cabinet portfolios nationally – police, security, and justice – are occupied by Zulu-speakers, one of whom bears prime responsibility for the notorious Protection of State Information (secrecy) bill.[10]

 

There is nothing wrong with pride in ethnic identity, provided it does not become entangled with competition for economic or political resources (as this province – and the Witwatersrand area – learnt to its cost in the early 1990s). The potential for increased tribalisation of ANC politics will need close watching in the run up to national elections in 2014 – particularly given the tendency of some ANC representatives to cast political or civic opponents in ethnic terms. Since the 2009 elections housing activists in informal settlements, including Abahlali baseMjondolo have been cast as ‘Xhosa’ trouble makers, as have COPE supporters in politically contested areas.  In recent struggles around housing in the Cato Crest shack area in Durban, ANC representatives in leadership positions are accused of being ‘AmaPondo’ (from Eastern Cape – Mandela is Pondo) who are taking houses away from Zulus. It is ironic that twenty years ago the label ‘Pondo’ was used in attacks against the ANC in this province.

 

Anti-Indian rhetoric in KZN

In recent months public statements by a grouping named Mazibuye African Forum (which claims to draw members from different political parties) has generated debate in the media about its perceived anti-Indian sentiments. The Forum claims that the target of its criticism is the economic system.

 

The basis of these public utterances is a document titled ‘Economic Quagmire in KwaZulu-Natal : Socio-Economic Injustices in KwaZulu-Natal.’ While making sweeping statements without substantiation – some of which are historical oversimplifications or inaccuracies – this document does raise serious issues about the implementation of government policy, especially as it relates to Black Economic Empowerment and Employment Equity, which need serious debate.

 

The history of African-Indian relations in KZN as described in this document is a grossly oversimplified and, in places, inaccurate, one. For example, the ‘Durban Riots’ involving Africans and Indians in 1949, in which dozens of Indians and black Africans lost their lives, are said – without any supporting evidence – to have been instigated by Indians.  As the late, highly respected researcher, political activist and Mandela biographer, Professor Fatima Meer points out, these riots took place in a context of virulent anti-Indianism by white politicians (who used Indian-directed vitriol as a vote-catching exercise in the 1948 elections in which the Nationalist Party came to power).  It was also one of growing rapprochement at a political level between the African and Indian Congresses (which would have posed a threat to the white status quo) Following her own research several years after the riots she goes so far as to say these riots were ‘white instigated’ with whites actively engaged in encouraging attacks on Indians.[11]

 

Mazibuye also glosses over the extent of the poverty in which most Indians historically lived. Meer cites research carried out by the Department of Economics at the University of Natal, which estimated that in 1949 more Indians in Durban than Africans lived below the poverty datum line, with the South African Institute of Race Relations giving a figure of 70.7% (which should not be seen as minimising the dire poverty among black Africans too, which was to increase dramatically with the forced relocations of millions of people during the implementation of the homeland policy from the 1960s)

 

Also ignored by Mazibuye, in calling for some Indian land to be redistributed to black Africans, is the fact that some land farmed and/or owned by Indians in, e.g. Nonoti (near kwaDukuza, where it is used for shack farming), or in the Camperdown area (where tribal authorities have irregularly erected housing and a school) has already been illegally taken over since the 1990s.  Many Indians lost land they owned with the implementation of the Group Areas Act in the 1950s – and have not been assisted by the Land Claims Commission in recovering it, or obtaining compensation.  Indians who, together with black Africans, owned land in Inanda, were also forcibly driven out of the Ghandi settlement area in 1986 in what appeared clearly the work of the hidden hand of apartheid, since the government had been trying to move Indians off the land, where they lived amicably with black Africans, as part of its homeland policy. This land became the densely settled shack area of Bhambayi (from ‘Bombay’) [12]

 

Despite the inaccuracies and oversimplifications this document raises important issues about the government’s economic and employment policy which need far wider debate, and further research.

 

Regarding BEE, the fundamental argument is that this policy is working more to the advantage of whites, Indians and ‘honorary blacks’ such as Chinese. Among the aspects dealt with is the ‘fronting’ phenomenon which, it claims, is discouraging entrepreneurship because it is far easier to earn money in that way – or to acquire BEE shares and non-executive director positions – as opposed to starting up new majority black African owned businesses. The problem, it says, is compounded by discrimination against such businesses in the awarding of contracts, and government-owned development financing institutions, such as the KZN Growth Fund (such financing bodies, it claims, are controlled largely by whites and Indians)  Among other claims is that foreign-owned businesses exploit loopholes in BEE in South Africa, but tend to work with Indian owned, rather than African owned, ones’  The example of the Gupta family is used to argue that some foreigners have no real commitment to the development of South Africa, and stash the wealth generated in their countries of origin – so the loyalty to South Africa of such entrepreneurs is doubted.

 

That fronting is widespread is common knowledge – but there seems little political will to deal with it. For example, it is rife in the powerful security industry.  Provisions exist in the PSIRA (Private Security Industry Regulatory Authority) legislation allowing for proper forensic investigation of the finances of security companies, but there seems to have been little inclination to implement it.  The same could be said for most other sectors of the economy.[13]

 

Similarly, employment equity is seen as having benefitted white women and Indians more than black Africans, with disproportionate numbers of Indians, e.g. represented in government departments such as SARS (South African Revenue Services) – and in management positions in eThekwini municipality.  Empirical evidence is needed to support these assertions. However, from KZN Monitor research into policing, there are clear examples in which Indian SAPS members – some with apartheid security police backgrounds – have been unfairly advantaged in promotion relative to experienced and highly competent black African members and/or occupy proportionally more senior positions relative to black African members..  A recent example in the public domain concerns the employment by the Crime Intelligence Component of the SAPS of convicted drug dealer ‘Timmie’ Marimuthu and members of his family. Marimuthu holds the rank of colonel, far above – and out of all proportion – to the ranks held by many long serving black African members.

 

Conversely calls to ‘Africanise’ both the Department of Health, and the Nelson Mandela School of Medicine at the University of KZN – have shown gross discrimination against highly qualified Indian professionals, in favour of those who are not necessarily well qualified for senior positions.  Ironically, such calls take place in the context in which it is known that the support of certain wealthy Indian business people is welcomed with open arms by both the governing party and a number of its representatives.

 

With justification, Mazibuye and its supporters claim that black African children often face discrimination in schools, in that they are disproportionally channelled into ‘Maths literacy’ classes in the years leading up to Matriculation examinations – which means that they are automatically excluded from applying for courses such as Engineering and Medicine when they complete school.  Because of the proximity of what were formally (in terms of the Group Areas Act) African, Indian and Coloured areas, and the perceived better education offered by, e.g. Indian schools, many of the schools in KZN which move children to ‘Maths literacy’ – unless their parents can pay thousands of rand for additional maths tuition – are former (under apartheid) Indian schools.  However, this channelling into maths literacy is said to be happening in schools all over South Africa.

 

Is the creation of ‘Maths literacy’ simply a cover for poor teaching of Maths in so many schools, with a view to boosting the pass rates of Mathematics? It certainly does discriminate against children whose parents cannot afford the extra maths lessons which so many middle-class parents arrange for their children.  Had such a move (or the ‘Zulufication’ of university teaching) been made by the apartheid government there would have been an outcry.

 

As with all criticism targeting ‘groups’, and the stereotypes which accompany it, Mazibuye Forum’s perceived anti-Indian sentiments not only contribute to polarisation along group/racial lines, but also obscure the countless examples of good working relationships between members of these groups, and the dedication of large numbers of Indians, including professionals such as doctors and lawyers, giving of themselves tirelessly in service of all South Africans, including black Africans.

 

The way forward

What steps should be taken to move away from this ‘group’ mentality, address existing tensions, and build the nation envisaged by our Constitution?

 

  • Maths literacy should be done away with, and resources poured into proper teaching of mathematics at a primary school level, which is the foundation on which secondary and tertiary level learning is based
  • Credible research is needed on the issues of BEE and Employment      Equity raised by Mazibuye. Empirical studies of organisational structure and culture in, e.g. eThekwini municipal governance (or other bureaucracies), looking at loci of power and authority, could be used to substantiate or repudiate allegations that it is Indians who exercise control
  • The need for an evaluation, followed by an amendment, of BEE      policy, is overdue – especially given what is already known about its      shortcomings. Mazibuye makes a number of detailed recommendations which  deserve serious consideration
  • There is an urgent need for ongoing public dialogue and debate, led      by respected leaders of black African and Indian communities – e.g.      professionals, academics, representatives of faith-based organisations about the issues raised by Mazibuye Forum
  • Political leaders should send out strong messages to their public      representatives, and to their constituencies to desist from using ethnic labels against their opponents, whether political or civic organisations
  • We need a concerted nation-building campaign to address the ills      referred to in this report
  • Government policy regarding refugees, and the way it is implemented by the Department of Home Affairs, must be urgently addressed – as should concerns that foreigners living among us do not enjoy sufficient protection from the police

 

KZN is richly blessed with cultural and religious diversity, and with hard-working, law abiding residents from many African countries (if there are criminals among them the law should deal with them, as it should with our home-grown criminals who operate with impunity).  Pride in ethnic identity is compatible with a broader nationalism (as e.g. Irish Americans), or with being a citizen of Africa and the world. The largely self educated Sol Plaatjie, a founding father of the ANC, travelled widely and was a lover of Shakespeare who used English to court his Xhosa wife. He also wrote a novel, Mhudi, celebrating Setswana custom and the relevance of an indigenous perspective.  Let us use the vision of Plaatjie and his fellow ANC founders to re-build and unify our fragmented country.    As under the Presidency of Nelson Mandela, this campaign should start at the top. Is the present government sufficiently committed to it? 



[1]see KZN Monitor ‘Colonial Mindsets and the Traditional Courts Bill : Implications for KZN’ regarding this topic

[2] Appia, Kwame IN my Father’s House London : Methuen 1992

[3] Mudimbe V Y The Idea of Africa  London : James Curry 1994

[4] Zweli Sangweni of the Mazibuyi African Forum, quoted in Daily News 16 July 2013   All racial labels used in South Africa have their own problems, and the term ‘black African’ is used here for convenience purposes because Monitor subscribes to the argument that African should be inclusive

[5] The Road to Democracy in South Africa : Volume 5 African Solidarity Part 1  SADET Pretoria : Unisa Press 2013

[6] Quoted in The Times 28 May 20013 ‘Send foreigners to camps’

[7] Leonard Thompson The Political Mythology of Apartheid New Haven : YaleUniversity Press 1985

[8] Reported in City Press 21 July 2013

[9] The Times  23 May 2013

[10] See KZN Monitor report on the Protection of State Information Bill

[11] Fatima Meer ‘African and Indian in Durban’  posted at DISA.ukzn.ac.za/webpages/

[12] Roy Ainslie and Mary de Haas ‘Bhambayi : The Third Force in Action’ in Schutte, Liebenberg & Minnaar (eds) The Hidden Hand : Covert Operations in South Africa, Revised Edition  Pretoria : Human Sciences Research Council 1998

[13] See KZN Monitor report ‘Privatised Policing and the Erosion of State Power’

KZN MONITOR : COUNTDOWN TO ELECTIONS 2014 : STOP ‘NO GO’ AREAS NOW

From recent events in Cato Crest, Durban, it seems that government representatives do not understand the distinction between their roles as elected officials who are supposed to serve all community members and the narrow political interests of their own party.   On the night of 26 June, local housing activist Nkululeko Gwala was shot dead. He had apparently been collecting information about corruption in housing allocation which he had planned to release to the media. His death followed a meeting in Cato Crest addressed by the eThekwini mayor, James Nxumalo, and the ANC’s eThekwini Regional Chairperson, Dr Sibongiseni Dhlomo (who is also MEC for Health in KZN). In his speech to those gathered Dhlomo reportedly boasted that the area was a ‘Gedleyihlekisa ‘ [Zuma/ANC] one, and said that Gwala should be removed to his home at Inchanga. Dhlomo has since denied allegations that his speech was tantamount to inciting listeners to harm Gwala, but he has failed to explain why he, as ANC regional chair, attended what was supposed to be a community – as opposed to party political – meeting.  His presence, and his reported speech, at this meeting sends out a strong message that the area is ANC territory and that other parties (including civil society organisations) should not be involved in local issues. It seems that the notion of ‘no go’ areas, which led to so much bloodshed in this province, is still alive and well. The implications for truly free and fair elections in 2014 are ominous.

 

Background to the death of Nkululeko Gwala

In March 2013 there were new bush clearing operations next to Cato Crest, a shack settlement in which formal housing is being built. These operations appear to have been part of a broader move by many city shack dwellers, dissatisfied with the municipality’s allocation of houses, to invade private and municipal land.  On 13 March the house and office of the councillor for Ward 101 (Cato Crest) was stoned by an armed mob after he had pleaded with them to stop the land clearing and building. He and his family left the area.  The land invaders reportedly included people whose shacks had been demolished when formal housing was built, who had not been given new houses, as well as those who had been making money from letting out the demolished shacks.  The municipality obtained an interdict against the invaders. According to the shack dwellers movement, Abahlali baseMjondolo (which was not involved in these invasions), well organised syndicates were taking advantage of the poor, who, despite being promised houses, saw them allocated elsewhere. Some of these people had been living in ‘transit camps’ for years.

 

On the night of Friday 15 March, the president of the Cato Crest Residents Association, Thembinkosi Qumbelo, was shot dead after visiting a local tavern. Qumbelo was an ANC member, and did not belong to Abahlali.  He had been trying to persuade the municipality to allocate houses to shack dwellers whose homes had been demolished. Another committee member of the Residents Association had been shot and injured, at his Cato Crest home, the day before Qumbelo was killed.

 

Shortly after these events eThekwini mayor James Nxumalo addressed a community meeting, and called for the shack dwellers to elect a committee of ten people with whom the municipality could work on housing issues. Nxumalo warned political parties to stay out of issues relating to land invasions.

 

Central to all these events were continuing allegations of nepotism (political and family connections) and bribery in the awarding of houses, raising questions about whether or not housing lists, on which persons applying for houses names appeared in the order of their application, existed.  Following an article in the Sunday Tribune on 28 April, which, citing various sources as saying that such lists did not exist, the municipality ‘clarified’ the situation.  Housing lists had been done away with because they were ‘discriminatory’ and ‘raised expectations’.  The municipality now had database showing ‘how many families live in informal settlements’, Various criteria were laid down for eligibility for what are termed ‘Green field’ projects, which were advertised in Metro publications.  In the case of the upgrading of informal settlements, beneficiaries would be informed by their councillor or Development Committee.  The municipality denied that councillors were involved in the allocation of housing.

 

On 23 May,  persons living in nearby Ward 30 (Dunbar/Bonela area) took to the streets, blocking roads with burning tyres and rocks, demanding the removal of their councillor, Zanele Ndzoyiya, alleging that her election had been rigged (she was one of eleven councillors in KZN investigated by the ANC for irregular nomination). The site of some of the protest, Vusi Mzimela (Bellair) Road runs between Bonela and Cato Crest.  While in the same general vicinity, the reasons for the protests in the two areas differed.

 

Cato Crest residents too continued with protest action, blocking a nearby road on 24 June. Ward 101 councillor Ngiba told protesters he would meet with four representatives, of whom Nkululeko Gwala, who had recently joined Abahlali, was one.  According to a statement issued by Abahlali, they stressed that they wanted to meet with the ward committee, and not with political party representatives. The meeting was arranged for Tuesday morning 25 June. When the four housing activists arrived they found ANC and SACP representatives present. When they protested the ANC representatives reportedly said that. ‘this was ANC land and that the housing project was an ANC project, and that they would make all the decisions in the area about the project’.  Nkululeko Gwala walked out and the other three remained. They were allegedly told that the ANC would not accept Gwala’s disrespect, and threats were made.

 

On that same Tuesday night there was further protest in the Dunbar area, and the offices of  Councillors Ndzoyiya and Ngiba were burnt down.  According to Abahlali they do not have members in that area.

.

It was on the morning of Wednesday 26 June that a municipality car with a loud hailer called people to a meeting supposedly to ‘unite’ the community. It was this meeting that was addressed by Nxumalo and Dhlomo – despite Nxumalo’s earlier insistence (in March) that politicians should not involve themselves in such meetings. Gwala was accused, among other things, of being disrespectful, causing problems for the party (ANC) and bringing a new party into the area (presumably Abahlali, which boasts of having supporters from different parties).

 

From events leading up to Gwala’s death it seems that the ANC views Cato Crest as its exclusive territory – which lends credence to allegations that political patronage is dispensed through housing allocation. The lack of clarity about who qualifies for upgrading, with decisions apparently being taken by faceless municipal officials who liaise with councillors, also feeds perceptions of nepotism.  Housing activists have fled the area, and a climate of fear, fuelled by rampant criminality, prevails in Cato Crest. An Ethopian shopkeeper, Dessia Bejego, was shot dead in broad daylight on 4 July.  With a view to preventing further violence in Cato Crest and other contested shack areas (including Kennedy Road),  and the promotion of multi party campaigning in the run up to the 2014 elections, KZN Monitor calls for

  • Nonpartisan protection of shack dwellers by proactive policing, in line with the aims of Sector Policing
  • The  publication by the municipality of its data base of shack dwellers, so that residents can check if their correct details have been captured, and the criteria used for taking decisions about who qualifies for upgrading to formal housing
  • Political party leaders to take immediate steps to end ‘no go’ areas, and to be held strictly accountable for doing so.

KZN MONITOR VOLUME 23 IS THE DEPARTMENT OF RURAL DEVELOPMENT & LAND REFORM STOKING THE FLAMES OF VIOLENCE IN KRANSKOP

Land claims settled in the Kranskop area in 2005 are touted by the government as one of the success stories of land reform. Nothing could be further from the truth : Firstly, the recipients were set up to fail because they were given land but no resources, including support services, by the Department of Land Affairs. To make matters worse, one of the parties, the Amakhabela traditional community, is making apparently well founded allegations that many of the farms transferred to the other party, the Ngcolosi community  – including a recent transfer of Mondi plantation land –  are on land historically belonging to the Makhabela.  They also claim that the  Department of Rural Development and Land Reform (‘Land Affairs’) in Pietermaritzburg is refusing to engage with them about what they view as a gross injustice. Tensions are rising and there are fears that violence will erupt. If it does, the responsibility must be laid at the feet of the Department of Rural Development and Land Reform.

 

In 2003 two claims, one by the Ntunjambili/ Ngcolosi and the other by the Amakhabela traditional community, for dozens of farms( 150 plus ) in the Kranskop area were gazetted. No proper verification process was undertaken by the Regional Land Claims Commission to ascertain the historical validity of these claims. However, it seems that the majority of the landowners were prepared to sell, having been offered good prices. Trusts were established by the two communities, but no resources or support services were forthcoming, so outside management was brought in, at a cost, to run the farming enterprises (mainly sugar and timber).  The Amakhabela aver – with supporting evidence – that many of the farms had historically been on their territory. Their attempts to meet with Land Affairs about their grievances have reportedly been unsuccessful.

 

Several months ago, a large tract of Mondi plantation land which was apparently also historically Makhabela territory, was reportedly handed over to the Ngcolosi.  Signs denoting that this is now iThuba (the Ngcolosi commercial company) are seen as extremely provocative, and there have already been threats that people associated with iThuba will be forcibly removed from the area. Community leaders are trying to defuse the situation but, given the complete lack of transparency on the part of Land Affairs, and its failure to address the concerns of the Amakhabela, it is likely to be only a matter of time before threats lead to overt conflict – which will then probably lead to ongoing feuding between the two parties. Nor has Land Affairs responded to questions posed by KZN Monitor about this hand over.  Given the apparent lack of any proper verification processes it is not surprising that rumours of nepotism and vested interests are flying around.

 

The situation in Kranskop provides yet more evidence that the failure of the government’s land reform policy lies with its own department. Providing land to emerging farmers – who really want to succeed – without providing any resources and extension services is a recipe for disaster. It also fuels negative stereotypes about supposed ‘cultural impediments’ to black people succeeding as farmers. One such assertion was published in a recent edition of the Farmers Weekly.  There is no historical foundation for labelling black farmers in this manner.  Historians have shown how, in the nineteenth century, peasant farmers in areas such as the Eastern Cape and what is now Lesotho were quick to seize the opportunities provided by the growth of the country’s population following the discovery of minerals (Lesotho was then seen as the bread basket of the sub-continent).  The rapid demise of this farming sector was brought on my land dispossession, the lack of infrastructure and access to markets (transport routes, for example, favouring the rapidly expanding white commercial farming) which forced black peasant farmers into a life of migrancy from which they have still not, eighteen years after the end of apartheid, escaped. As under colonialism and apartheid, rural areas still function largely as labour resevoirs for mining and industry. According to a media report, mismanagement at the provincial department responsible for agriculture and rural development has resulted in tractors rusting away instead of finding their way to emerging farmers who need them.

 

Since 2000 there have been ongoing complaints from both claimants and land owners about the conduct of staff at the Land Claims Commission and Department the Land Affairs in their handling of contentious land claim issues.  That their lack of transparency and accountability – which is all too common in government departments – may well be the catalyst for an outbreak of violence in Kranskop is absolutely outrageous. There is an urgent need for intervention from the national level, including by holding the national minister accountable for the abysmal performance of his staff.