How President Zuma blew the chance to steal a march on his opponents

South African President Jacob Zuma is appealing a High Court ruling that he give reasons for his controversial cabinet reshuffle.

As the dust was starting to settle on South African President Jacob Zuma’s recent controversial reshuffle of his cabinet, a new storm erupted. The country’s High Court ordered him to give the reasons for his decision.

The governing African National Congress (ANC) is infuriated. The ANC in KwaZulu-Natal organised a march against what the party regards as judicial overreach.

The president is appealing. The main point of his lawyers argument is that the court erred in the way in which it interpreted a Rule 53 of the Uniform Rules of Court. The rules came into effect in 1965 (predating the end of apartheid) to optimise the administration of justice, specifically in relation to the review of administrative or quasi-judicial decisions with pernicious consequences.

The premise of the judge’s ruling seems to be that accountability in the exercise of executive authority is sacrosanct in a constitutional democracy.

Its application in the past has been limited to administrative functions, never an executive function. It’s on this basis that Zuma’s lawyers are arguing that Rule 53 cannot be used to review and set aside an executive decision.

Surreal interpretation of the law

The judge’s interpretation attempts to sync the meaning of the Rule 53 with South Africa’s constitutional democracy. For his part, Zuma’s literal interpretation draws from the apartheid logic where executive sovereignty reigned supreme. In the past, the power of the president was akin to royal prerogative.

The judge argued that this “is a relic of an age past” and not part of the foundational logic of the post-apartheid state.

The president’s grounds for appeal appear surreal. How can the meaning of a rule – determined by a context that the president ferociously fought against as a freedom fighter – be invoked to justify his executive action in a democracy?

This is not a question of law, but of exemplary leadership in a society where the rule of law lies in the constitution.

In taking an oath as the president, Zuma committed himself to, in the words of eminent scholar of government Louis Gawthrop,

the service of democracy, (which) requires, at least, a conscious and mature awareness of the ethical impulses of democracy, the transcendent values of democracy, and the moral vision of democracy.

Indeed, Zuma’s executive authority includes the power to appoint and fire the deputy president, ministers and deputy ministers.

In other words, at issue is not the executive authority of the president, but how this authority is exercised.

The ruling – right or wrong – compels the nation to ask the question: Is Zuma’s exercise of his authority in sync with the objectives of the country’s hard-won democracy, as formalised in the constitution?

In a constitutional democracy, a concomitant of executive authority is accountability – a function of rationality. In other words, the president’s executive powers are not absolute, despite the fact that they are wide-ranging.

Beyond the legalese of a cabinet reshuffle

In a desperate attempt to extricate himself from a sticky situation Zuma has dug in his heels, clinging to the interpretation of law that belongs to the apartheid era.

Lest we forget, the Zuma presidency institutionalised monitoring and evaluation systems to keep in check the performance of state bureaucracy as well as ministers. For, as the former City of Los Angeles Board of Efficiency director Jesse D Burks aptly put it.

most men cannot hold themselves to their highest standard of efficiency unless they are constantly stimulated by the prospect of a rigid and impartial appraisal of their work.

Zuma thought, correctly, that a means to achieve this with his ministers was through performance agreements. These are important to check achievements against outcomes, and to detect misdirection of effort and waste.

They are also important because they give effect to outcomes-based governance where the focus is on the impact of state action. Of critical importance is positive change in the well-being of citizens.

A big part of outcomes-based governance are performance agreements between the president and ministers. These are linked to key outcomes, indicators and targets in the Medium Term Strategic Framework relating to the legislative mandates of respective government departments. The framework focuses attention on government issues that are critically important. These, in turn, are based on the manifesto of the governing ANC, and linked to a five-year electoral mandate.

Outcomes-based governance is an excellent model to optimise the state. Monitoring and evaluation systems generate performance data for the president to determine who in his cabinet performs, or does not.

With all these in place, why have the reasons for the cabinet reshuffle not been forthcoming? Why has it taken the intervention of the judiciary to compel the president to furnish them?

Wittingly or unwittingly, by introducing performance agreements Zuma promised that his decisions to reshuffle the cabinet could be based on rationality. Why is he now acting against the logic of the architecture of his administration which promises accountability in the exercise of executive authority?

Missed opportunity to be the best

Had Zuma followed through the logic of his administration he would have turned out to be the best president who, in the words of influential Baltimorean journalist H.L. Mencken, understands that

as democracy is perfected, the office of the president represents, more and more closely, the inner soul of the people.

He would have outsmarted the main opposition party, the Democratic Alliance (DA), which brought the case to court. After all, he’s in a position to account to the nation about the performance of cabinet members, using performance data generated from their performance agreements.

By making this part of the culture of accountability, alternative narratives – beyond the score cards published annually by the DA assessing the performance of government – would have emerged. These would have provided an informed understanding of the state of the State.

The court case underscores the confluence of accountability and rationality in the exercise of authority in a constitutional democracy. Why is this difficult to understand?

Mashupye Herbert Maserumule, Professor of Public Affairs, Tshwane University of Technology

This article was originally published on The Conversation.

Farm labourers dumped in remote town after wage dispute

“It is unfortunate that in this age people are still being treated like animals.”

By Joseph Chirume
23 May 2017

These men were dumped in a remote town after a wage dispute with a farmer. Photo: Joseph Chirume

Fourteen men brought to Addo to work on a farm picking oranges and lemons say the farmer never paid them. Instead, he drove them out to a remote town and dumped them 200km from home.
They also allege he threatened to shoot them if they did not get out off his vehicle.

Lusanda Ngam, 34, says that earlier in May they were told by a man who works in Addo that there was a farmer who needed 16 strong men to work on his farm. He and his friends recruited 14 men in Middledrift, 20km from Alice, who were looking for jobs.

The farmer hired a taxi to take them to Addo, 230km away. They were promised R1,500 a month, he says.

“We sensed trouble upon arrival when the farmer said he wanted our Identity Books as surety for the money he had spent on transporting us,” says Ngam.

“He paid us very little money in our first week. He said he was deducting the money he had spent on transport. He also told us he deducted money for electricity, water, mattresses and food. We ended up being paid less than R100 each.”

Ngam says the farmer was abusive, calling them lazy and incompetent. They asked him to return their IDs and to pay them out.

“He became very angry and said he would not give us anything. We insisted and he eventually returned our IDs, but he refused to pay us any money. He said we owed him a lot a money,” says Ngam.

They were offered transport in two bakkies. At first they thought the farmer was going to leave them in Alice at the place where they had taken the taxi to the farm. But the farmer dumped them in Paterson, 200kms from Middledrift.

“We refused to get out. He eventually told us that if we insisted on refusing he was going to shoot all of us. We quickly got out of his bakkies afraid that he would kill us. He then drove off … We had no money even to buy air time to inform our families back home about our plight,” says Ngam.
Six of the men were able to get rides to Alice, but eight were stranded.

One of the men, Siyanda Siganga, who lives in Alice and has two young children, says, ‘We were finally helped by a councillor in Paterson who contacted his Addo counterpart, councillor Simphiwe Rune. They took us to Addo Police station where we slept for the night before they arranged a car for us on Saturday that left us in Alice.

“We are broke and penniless. What are we going to give our children who had expected much from us? Who is going to help us so that we get our money that the farmer owes us?”

The farmer, Jabru van Schalkwyk Fourie of Weltevreden Farm, says, “I owe them nothing. These guys were recruited on my behalf by a third party but I sponsored everything including transporting them from Alice to Addo. I also have to pay the man who recruited them his commission. We agreed that I was gong to deduct the following amounts of money from each of their wages, thus R300 for transport, R200 for food and R100 for using my mattresses. They also had to pay electricity.

“They did not work in the first five days because it was raining, so there was no pay. Anyhow, I managed to give them some money for food and to motivate them. At the end, it’s me who has lost more money than what they claim.”

“They were also lazy and always complaining. At last they demanded their IDs because they said they wanted to go home. I asked for the money they owed me. I dropped them in Paterson because it is convenient as there is a main road where they could get transport easily to Alice. I never threatened them with a gun, because I don’t have a licence to own a gun. You can check my records.”

As to the promise of R1,500 a month and also how much he pays his other workers, Fourie says, “They could have earned that amount had they worked hard. We pay R95 a crate of lemons and if you pick by the bag then you earn R2.60. There are people who earn R2,000 a month a fortnight because they work hard. These guys didn’t work”

Addo councillor and Speaker for the Sundays River Municipality Council Simphiwe Rune said, “We came to these men’s assistance after seeing their desperation and suffering. We also took into consideration that they were left in the open this time of the year. We had to do something to ensure they got overnight accommodation and transport back home. They slept at Addo Police station on Friday and on Saturday we arranged a car that took them to Alice.

“It is unfortunate that in this age people are still being treated like animals. Some unscrupulous farmers here hire people from far away places, including bringing illegal immigrants to their farms, because they don’t want to abide by the labour laws of the country.”

Sergeant Majola Nkohli confirmed that “eight men came to Addo Police station on Saturday morning to report that they had a problem with their farmer employer.” He said they did not open a case.

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Published originally on GroundUp .

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Street lighting in Khayelitsha and Nyanga – a crime story

“You can never send your child to the shop after 7pm. Parents live in fear.”

By Natalie Pertsovsky
22 May 2017

A street light. Photo: Nwabisa Pondoyi

On Saturday, the Social Justice Coalition (SJC) presented its detailed report on the need for better lighting in Khayelitsha and Nyanga at the Isivivana community centre.
The research report stated “there is no doubt that inadequate lighting is a security issue”. It follows findings and recommendations by the Khayelitsha Commission of Inquiry chaired by Justice Kate O’Regan and Advocate Vusi Pikoli in 2014. The Commission was established to investigate the breakdown of relations between the community of Khayelitsha and the South African Police Service (SAPS).

The problem of poorly lit areas and streets in Cape Town’s townships was highlighted by residents during the hearings.

The City of Cape Town in its Design and Management Guidelines for a Safer City acknowledges that “good lighting is one of the most effective means of increasing levels of safety and deterring crime”.
The SJC is calling on the City to “move forward on developing plans and a budget” in order to alleviate the problem.

GroundUp spoke to a few of the community leaders and activists about their concerns.
Martin Makasi, chairperson of the Cape Town Community Police Forum, said: “Nyanga is dark at night … Fixing lights would reduce crime significantly.”

Dumisani Qwebe, deputy chairperson of the Nyanga Community Police Forum, said: “You can never send your child to the shop after 7pm. Parents live in fear for their children.”
Qwebe said that going to the toilet at night meant risking one’s safety. “Some parents keep five-litre buckets [in their shacks] to use at night to relieve themselves,” he said.

According to the latest crime statistics, Nyanga had 279 murder cases in 2016, the highest number of reported murders recorded in a single precinct in the country. It also had the most number of reported sexual offences (351) and assaults (1,053) in the Western Cape.

Qwebe said that the Nyanga police station sent a monthly report to the Department of Community Safety describing some of the station’s challenges. These included a shortage of working street lights and police vehicles, and the increased prevalence of people seeking shelter at the station. “There is no progress,” he said about the City’s response to the Police Forum’s reports. “We feel very disappointed.”

To give people a visual idea of the problem of lighting in the two communities, the SJC report included two maps from the City identifying area lighting and street lighting.

According to the City’s guidelines, “high-mast spotlights [area lights] that cast dark shadows” are less effective than street lighting. The guidelines also state that “effective public lighting” requires lighting on poles to be about three metres high and to be placed at intervals of eight to ten metres.
The map displaying public lighting in Khayelitsha shows that there are mostly area lights in the central area and not as many street lights. In Nyanga, the map includes the Nyanga police precinct boundary in black. Within this boundary, the number of street lights are more than eight to ten metres apart with several areas only having area lights.

To understand these maps, note the orange areas and the red dots. The orange represents street lights, and the red represents the high-mast area lights. The latter is less effective than the former. In both Nyanga and Khayelitsha, there are large areas with no orange but instead red. Those areas are served with area lights rather than street lights. Images via SJC are from the City of Cape Town’s Geographic Information Systems department.

In response to questions from GroundUp, Xanthea Limberg, Mayoral Committee Member for Informal Settlements, Utilities and Energy, said: “The City is confident that most of Khayelitsha and Nyanga are covered by either street or high-mast lighting. The City is working together with the community and SAPS to identify areas which are not lit and to then see whether it is possible to erect street- or high-mast lighting in these areas.”

Limberg said that because electricity in Khayelitsha was supplied by Eskom, any changes or applications for lighting needed to go through the company.

“They have agreed on a way forward and have identified certain areas such as high-transit routes and are planning, where possible, to install further lighting,” she said.
Five years after GroundUp first reported on the lack of proper street lighting in Khayelitsha and Nyanga, it remains an issue for these communities.

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Published originally on GroundUp .

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A 147-year-old dispute between church and state spills onto a school playground

Why do so many state constitutions have provisions precluding funding for religious schools?

The United States Supreme Court recently heard oral arguments in a case from Missouri that could have a significant impact on state funding of religious schools.

The case involved a church in Missouri, the Trinity Lutheran Church, that had applied for state grants to purchase recycled tire material to refurbish its playground. The state declined the request due to a state constitutional provision that forbids funding for religious institutions, including schools.

The case raises some important questions. A particularly important one is whether denying state funding to religious schools under a program generally open to nonreligious schools is unconstitutional.

As a legal scholar, a related issue that interests me is why so many state constitutions have provisions preventing funding for religious schools?

Conflicting history

A number of state constitutions have clauses restricting state funding for religious schools, or for private schools generally. The language and history of these clauses vary widely.

The United States Supreme Court has suggested that some of these clauses may be invalid if they are based in anti-Catholic prejudice, which was pervasive in the United States from the founding of the nation through the middle of the 20th century. Indeed, some historians and others have made strong arguments that these clauses were based in anti-Catholic bigotry.

These state clauses also raise concerns over whether they violate the Free Exercise Clause and the Equal Protection Clause of the United States Constitution, which prohibit laws that discriminate against any religion. A state constitutional provision that violates the United States Constitution would itself be unconstitutional.

Of course, just because some of these clauses may be based in part on anti-Catholic prejudice does not mean that all of these clauses reflect anti-Catholic bigotry. In fact, other legal historians have made strong arguments that many state constitutional provisions were based on concerns other than anti-Catholic prejudice, such as promoting a strong system of public education, especially after emancipation.

The Blaine Amendment

Some state constitutional provisions denying taxpayer funding to religious schools are referred to as “baby-Blaines.”

So, what are baby-Blaines?

The term refers to state constitutional provisions modeled on an amendment to the United States Constitution that was proposed in 1875 by Senator James G. Blaine, but was never adopted. That proposed amendment would have, among other things, prevented state governments from spending money to fund religious schools.

Senator James G. Blaine.
Library of Congress Prints and Photographs Division Washington, D.C. 20540 USA

Senator Blaine was a powerful Republican senator from Maine. He also served as secretary of state and was the Republican nominee for president in 1884, but was narrowly defeated by Grover Cleveland.

While Senator Blaine’s motivation in proposing the amendment is complex, scholars have shown that many supporters of that proposed amendment demonstrated strong anti-Catholic bias. The amendment itself arose during an era of extreme anti-Catholic bias in the United States.

By 1875 a number of states were engaged in significant debates over funding Catholic parochial schools. Yet, in other states the focus was primarily on promoting a strong system of public education for all citizens after the Civil War and emancipation. In fact, President Ulysses S. Grant, a supporter of a strong system of public education, made a famous speech in 1875 promoting public education which may have helped spur Blaine’s proposed Amendment.

A state funding provision based in anti-Catholic prejudice – such as a baby-Blaine – could be unconstitutional today. Yet, a similar provision that is not driven by anti-Catholic prejudice could well be constitutional.

In 2004, for example, the Supreme Court upheld application of a Washington state constitutional provision that limits funding to religious education, but does not share the anti-Catholic prejudice of baby-Blaines. The constitutional provision in that case is similar to the one at issue in the Trinity Lutheran case.

However, the state of Washington was sued only for denying funding to those studying to become a minister or other clergy member. At the heart of the Trinity Lutheran case is the issue of whether the state can deny funding for things other than studying to become a minister. The history of the Missouri Constitution’s provision denying funding to religious schools is relevant to this question.

The Missouri Constitution

So, it becomes important to know which state provisions emerged from anti-Catholic prejudice. More specifically, is Article 1, Section 7 of the Missouri Constitution – the clause at issue in the Trinity Lutheran case – based in anti-Catholic prejudice? In other words, is it a baby-Blaine?

I am a signatory on an amicus brief in this case. I believe it is not a baby-Blaine. And here is why.

Missouri State Capitol.
Jimmy Emerson, DVM, CC BY-NC-ND

Article I, Section 7 of the Missouri Constitution does not closely track the language of the Blaine Amendment, and is in fact broader and more focused on a longstanding state concern about separation of church and state in Missouri.

Moreover, the legislative history of Article 1, Section 7 does not contain the somewhat pervasive anti-Catholic prejudice found in the legislative history of a number of baby-Blaines and the failed federal Blaine Amendment itself.

It is true that Article I, Section 7 of the Missouri Constitution was passed in 1875 – the same year the failed federal Blaine Amendment was introduced. This has spurred debate among legal scholars. The key, however, is not the year it was passed, but rather the dates on which it was debated. The Missouri provision was discussed by the Missouri Constitutional Convention months before Senator Blaine proposed the federal amendment. This adds some fuel to the argument that it is not a baby-Blaine.

On the other hand even if the particular provision of the Missouri Constitution is not a “baby-Blaine,” the other issues in the Trinity Lutheran case remain important.

Whatever may be the outcome of the Trinity Lutheran Church case, it is worth noting how an often overlooked period in history continues to have an impact on issues such as playground surfaces in the 21st century.

Frank S. Ravitch, Professor of Law & Walter H. Stowers Chair of Law and Religion, Michigan State University

This article was originally published on The Conversation.

Is China to blame for the global avocado shortage?

Recent media reports of an avocado shortage have hipsters and foodies horrified the world over. Prices are at a record high as a result of a classic supply and demand situation. Harvests from major producers in Mexico, Peru and California, have been poor, which has reduced supply. Meanwhile, demand has surged. And not just in the affluent West, Chinese consumers are developing an insatiable taste for them too.

The sheer number of people in China has long made the Chinese market a dream for exporters to crack. And it seems that China’s aspirational middle class has a lot in common with its Western counterparts. Especially when it comes to food fads.

I remember, as a teenager, the first time I ever heard about avocados. It was 1977 and I was watching Abigail’s Party, a Mike Leigh play on the BBC. It was a wicked and rather tragic comedy of manners, which poked fun at the insecurities of the aspirational lower middle classes.

The central character, Beverly, wanted to impress her guests by insisting that they try her avocados, olives and various other international delicacies, which were considered new and exotic at the time. The sound of romantic Demis Roussos songs on the stereo, added to the “sophisticated” ambience that Beverly thought she was creating. Upstairs, she probably also had an avocado bathroom suite. We all laughed at Beverly, even if many of us recognised something of ourselves in her attitudes and behaviour.

Conspicuous consumption

Abigail’s Party satirised the early symptoms of a trend that would be accelerated during the Thatcher years of the 1980s: conspicuous consumption. New and affordable luxuries made it possible for everyone to extend their self-image through what they bought and express their dreams of upward mobility. The academic Russell Belk wrote about this phenomenon in 1988 in his landmark marketing article, Possessions and the Extended Self.

Now avocados are in fashion again, but this time mainly for their supposed health benefits. Some regard it as a “super food” and it is included in various fad diets. Thousands of blogs, Facebook posts and Instagram pictures of smashed avocado on toast also diffuse around the world, sating our narcissistic desire to tell everyone how healthy we are or hope to be. Beverly could only impress a handful of guests in the 1970s. Now we can try to impress thousands. Belk has even updated his original article to consider the “extended self in a digital world”.

These displays of conspicuous consumption are just as prevalent in China, which has a rapidly growing middle class of more than 100m people. Avocados – or “butter fruit” as they are known – are also relatively new there, having only been available in exclusive outlets for a few years. So avocado demand there is being doubly driven, not only by their promised health benefits, but equally by their newness, exclusivity and symbolic, aspirational value to the burgeoning middle class.




Of course, the sheer size and potential of the Chinese market means that when their consumers get a taste for something, it can have a really big impact on supplies and prices around the rest of the world. A market that took 40 years to evolve in the West is being replicated in a fraction of the time in China.

Suppliers have tried to ramp up production to meet the demand. China itself is looking to establish its own domestic production in the south of the country. The problem is that avocados are difficult to grow, requiring deep aerated soil, warm conditions and huge amounts of water. Where new crops can be grown, this is leading to deforestation and pressure on water supplies.

So a super food it may be, but a huge increase in avocado production is not very good for the environment. If the current growth in demand proves to be a relatively short-term fad, then a lot of long-term damage will have been done to satisfy it. There are probably more sustainable ways of eating healthy food and achieving social one-upmanship.

However, as the West has led the way in creating consumer desires based on aspiration and status anxiety, it is a bit rich to then criticise the Chinese middle class consumer for doing the same. There are more things that unite us than divide us – not least a love of avocados.

David Harvey, Senior Lecturer in Marketing, University of Huddersfield

This article was originally published on The Conversation.