False start to Parliament’s state capture probe

“The key thing here is that we need to get the money back as soon as possible”

By Moira Levy and Sune Payne
17 August 2017

Photo: Ashraf Hendricks

When exactly is Parliament’s own version of a probe into state capture going to leave the starting blocks? Wednesday’s meeting of the Committee on State Enterprises was yet another false start. Billed as a probe into Eskom, it was underwhelming.

Most of the time was taken up with a convoluted discussion on who should be permitted to serve as evidence leader for this inquiry and who gets to guide proceedings and provide technical support to the Committee.

Could this be a delaying tactic, or is it a way of ensuring that hearings are too boring to draw any public interest?

Committee members appeared keen to get going, with comments reminiscent of the “Pay back the money” chants we have heard in Parliament before.

Committee member Steve Swart from the ACDP said, “The key thing here is that we need to get the money back as soon as possible” and Narend Singh of the IFP wanted to urgently get to the bottom of corruption within State Owned Enterprises (SOEs) because that amounts to “robbing hard-earned taxpayers” and “stealing our money”.

The DA’s Natasha Mazzone said an inquiry into state capture was needed because it affects the economy and everyone in South Africa. SOEs lie at the heart of the South African economy she said. “These companies affect the everyday lives of South Africans.”

It is unusual to speedily reach consensus in any multi-party committee, but this one — made up of four committees — immediately agreed on one matter: it wants money that has been lost to corruption and state capture to be repaid, and soon.

That’s about all that could be agreed on, aside from the fact that another meeting will be scheduled soon. Even the parliamentary legal staff seemed confused about who will lead proceedings as they felt this could compromise MPs’ oversight powers when the inquiry gets underway.

The EFF’s Floyd Shivambu wanted to know where the National Prosecuting Authority was, and why it was not represented at the meeting.

A committee chairperson has still to be appointed and at its earlier preparatory meeting it became clear that there was no qualified evidence leader to assist the committee. That led opposition leader John Steenhuisen to point out that an investigation of this nature will require an advocate experienced in litigation. He suggested that Parliament take on an advocate from outside if it cannot source one employed by Parliament.

Steenhuisen said at the time that the committee will need technical experts, researchers and an extensive infrastructure. “Parliament has a constitutional duty to investigate the damning state capture evidence. In order to properly fulfil that duty‚ parliamentary committees need to be properly resourced to handle such in-depth investigations.”

The concern of under-resourcing was exactly why the DA had argued strongly and lobbied for the formation of a single all-encompassing ad hoc committee to investigate state capture‚ he added.

Lack of resources was also identified as a problem by the acting committee chairperson, Zukiswa Rantho. Speaking to GroundUp/Notes from the House she said, “This Committee has [been given] the same resources as any other committee of Parliament, but because we have this huge job we need more resources. We need experts, people who deal with finances, people who deal with technical issues of law that we as parliamentarians don’t know.”

Rantho explained that the inquiry by the committee would look at the issues raised in the leaked Gupta emails that provided detailed evidence of state capture. It will be investigating big SOEs, particularly Eskom, but also Denel and Transnet. “SOEs are very big companies in South Africa and they deal with big budgets [from] government. [For example,] Eskom is a huge company that deals with huge amounts of money, which is taxpayers’ money. Therefore it is very important for South Africans to know what is happening with this committee,” she said.

Former public protector Thuli Madonsela proposed a judicial commission of inquiry into the extent and detail of how the state is being undermined when she released her State of Capture report in October 2016. But her proposal for the Chief Justice to appoint a retired judge to head this commission was rejected by President Zuma, who also said he was never given an opportunity to respond. He has taken the matter to court. No further action can be taken until the legal process has run its course.

Civil society, meanwhile, got on with its own investigations. The South African Council of Churches, the State Research Capacity Project and the Organisation Undoing Tax Abuse have released their own findings. Government’s response has been that anyone with knowledge of wrong-doing should lay criminal charges.

Parliament’s unique response came in the form of a written instruction, from the House Chairperson of Committees, Mr Cedric Frolick, for the Home Affairs, Mineral Resources, Public Enterprises and Transport Portfolio Committees to engage with the allegations “within the parameters of the Assembly Rules governing the business of committees and consistent with the constitutionally enshrined oversight function of Parliament”.

In the light of the accusations involving a number of ministers he wrote to the chairpersons to request “immediate engagement with the concerned ministers to ensure that Parliament gets to the bottom of the allegations”. No specific deadline was set for submission of findings of their investigations, but Frolick requested that the four committees report their recommendations to the House urgently.

Once the committees have done a thorough investigation they will make recommendations that could have either civil or criminal implications for those found to be implicated.

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Published originally on GroundUp .

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Hard bargaining, not another magic plan, will get South Africa's economy growing

South Africa’s Finance Minister, Malusi Gigaba, needs more than the 14-point plan to revive the economy.
REUTERS/Rogan Ward

Finance ministers in today’s South Africa should be judged not by whether they have plans to rescue the economy themselves, but by their plans to get others to help them to do it.

South Africa’s new finance minister Malusi Gigaba recently unveiled a 14-point plan to revive the economy. He did this as part of his campaign to restore trust in the economy, partly damaged by the cabinet reshuffle in which he replaced a minister respected in the market place.

The plan has not achieved the desired effect – credit ratings agencies and commentators have rejected it, labelling it a restatement of existing government commitments which will do little or nothing to grow the economy.

On one level, the complaint is accurate. Gigaba’s plan, like the governing African National Congress’s economic discussion document, fails to move out of the rut which currently hobbles the economy. It, too, assumes that the solution lies in doing what is currently being done better rather than in doing things differently.

In particular it has nothing to say about how to include millions who are shut out of the mainstream economy. It’s difficult to see how South Africa’s economy can achieve sustained growth until and unless this problem is addressed.

On another level, the complaint that Gigaba did not come up with a plan which will rescue the economy misses the point – that, given the balance of power in South Africa, no government plan could rescue the economy on its own. Government promises to revive the economy should be judged not on whether they tell the country that the government – on its own – has come up with a cure, but on whether it has a credible plan for ensuring that all the key economic actors play a role in negotiating change.

Bargaining is the key

Those who expect the government to solve the economic problems on its own believe, of course, that government created them on its own. In this view, South Africa’s economy worked well until politicians came along and damaged it. All that’s needed is for politicians to behave differently and the economy will again function as it should.

But growth levels are too low to offer a better life to all, and other obstacles which ensure that South Africans do not all enjoy rising living standards, didn’t emerge when the current president took office or even in 1994, when the governing party took over the reins. To take one example: unemployment began rising in the 1970s, a quarter century before apartheid ended. The economy has always excluded most people – what we see now continues patterns set decades ago.

The government obviously does have a role in addressing these problems. But it’s not the only source of the problem and so it cannot be the only source of a solution. Some of what business or labour or the professions or educational institutions do is also responsible for the problem. And so they all need to become part of a solution by changing some of what they do.

While this picture of all the parties coming together to work out solutions sounds attractive, getting them to the table is difficult. And finding solutions will be even harder because they are deeply divided on what the problems are, and so on what the solutions may be.

Any particular idea for change will force one or other party to give up something in order to reap dividends later. Naturally, they all think that the others should do the sacrificing.

So a process which placed the economy on a sustainable path would require some hard bargaining and would need to continue for quite some time. It’s this bargaining process, not a magical government formula, which will place the economy on a new growth path.

Rebuilding trust

The government clearly has a key role in triggering the process of bargaining. This is precisely what the National Treasury seemed to be doing under Gigaba’s predecessor, Pravin Gordhan.

Its attempts to stave off a downgrade by ratings agencies began an exchange between government, sections of business and labour which may have developed into a negotiation about change. The chief priority for Gigaba – or any other finance minister – is to revive the process which ended when the cabinet reshuffle destroyed the trust which made it possible.

Gigaba’s plan does contain two points which might begin the revival. One is a commitment to a financial sector summit, the other a promise to resume talks on a mining charter.

Both may well fall short of what is needed. The summit idea repeats a flaw in government thinking on bargaining with business which has been evident for decades. It assumes that deep –rooted problems can be solved, and deep divisions healed, by a grand summit which gets the parties into a conference venue for a few days to hammer out a joint declaration.

This has been tried repeatedly and, each time, the declarations sounded good but were ignored. This is hardly surprising: precisely because the divisions are deep, they cannot be bridged at one event. Change is likely to need a process – not a summit. This should take as long as needed and concentrate on reaching agreement on what can be agreed, and building from there.

It is possible, however, that both initiatives could be the start of a productive process in which parties will be willing to negotiate changes which entail giving something up provided they get something in return. This is far more likely if this process too is not left to government alone.

Gigaba’s plans for negotiation may be improved, and so may move the economy towards growth which includes many more people. But only if commentators and interest groups treat them with the same seriousness they now reserve their hopes for a magic government plan to save the economy.

Steven Friedman, Professor of Political Studies, University of Johannesburg

This article was originally published on The Conversation.

The end of South African universities?

South Africa needs reflective leadership at its universities.
Brett Atherstone/flickr

Jonathan Jansen, vice-chancellor of the University of the Free State in South Africa until a year ago, has written a book on the country’s higher education sector. As by Fire – The End of the South African University is one of a number of recent books that set out to make sense of the current crisis in South African universities.

The crisis began in early 2015 with the #RhodesMustFall protests and gained momentum over the course of 2015. These protests fuelled, and eventually overtook the national #FeesMustFall movement. The underlying economic, cultural and political issues that drove the protests remain largely unresolved.

As by Fire is structured around three main questions: What in fact happened? Why did it happen? And what does the protest crisis mean for the future of South African universities?

Jansen draws on his own experience as well as interviews with 11 vice-chancellors in the country. His conclusion is:

In a nutshell, there is no future, and

What we are witnessing is a full system meltdown.

There are several problems with Jansen’s apocalyptic thesis.

An irresponsible thesis

Firstly, for a scholar of Jansen’s calibre, the analysis lacks a broad comparative perspective. His main reference point is the story of failing universities on the rest of the continent.

Jansen doesn’t make any comparisons to student protests across the globe – in Hong Kong, Canada, Chile, the UK, the US and Turkey, to name a few. These were also characterised by occupations of leaderless movements, threats of violence by police and militant students, reassertion of identity politics in curriculum and political stalemate.

A more thorough comparative analysis of what is happening in South Africa in relation to continental and global trends could have led to a more constructive conclusion that posed a range of future scenarios instead of a single “no future” story.

The more serious problem with Jansen’s “no future” thesis is that it’s irresponsible. Someone of Jansen’s profile has tremendous power to shape the narrative. And how South Africans interpret the events of the past two years shapes how the sector will go forward. In other words, his conclusion has consequences. Why would academics stay if they believed Jansen’s predictions with the certainty that he projects them? Why would students apply? Why would donors invest?

In the final few paragraphs Jansen attempts to wave a small flag of hope by appealing to civic action under the banners of free education for the poor and the right to education for all. This is an unconvincing attempt to end the book on a happier note.

An important perspective on leadership

What the book does offer is a view of university leaders under crisis – a close-up, zoomed-in, largely unedited perspective of 11 VC’s “under fire”, in some cases, literally. This is why the book will be of interest to anyone in higher education management.

The extensive literature of higher education leadership and management needs more of this kind of “in the trenches” study – leaders describing in their own words what it feels like to be flattened between a rock and a hard place, managing competing and contradictory demands from all sides while always under the watch of an unsympathetic media.

The book presents a view of leaders in a lose-lose situation, required to make on-the-spot judgement calls. The reader gets a close-up view of the ways in which they worked tirelessly to defend their institutions and were battered from every side. And Jansen is right to expose the extreme pressure and the personal costs that the VCs and their families paid. The accounts expose both their vulnerability and their resilience.

Jansen concludes by arguing that what’s needed more than ever before is

university leadership that is both compassionate in speaking to the student heart and competent in leading our universities in a demanding world of teaching, research, and public duty.

The missed opportunity of the book is that Jansen doesn’t explicitly extract from his interviewees what that compassionate competence looks like. In retrospect, what do they think they did right? What do they regret? What did they learn as leaders in crisis about the complexities of leading a university community at this stage of South Africa’s democracy?

Rebecca Solnit, American activist and author of Hope in the Dark, writes of the times we are living in that

this is an extraordinary time full of vital, transformative movements that could not be foreseen. It’s also a nightmarish time. Full engagement requires the ability to perceive both.

What South Africa’s universities need from their leaders now is not prophecies of doom, but deeper reflection on the transformative potential of this difficult historical moment.

Suellen Shay, Dean and Associate Professor, University of Cape Town

This article was originally published on The Conversation.

Disclosure of party funding: only if it’s relevant, says DA

Not all funding information is useful to voters, argues opposition party

By Ashleigh Furlong
16 August 2017

Advocates for My Vote Counts and for the Democratic Alliance in court before the hearing on Wednesday. Photo: Ashleigh Furlong

The Democratic Alliance argued in the Western Cape High court on Wednesday that political parties should only have to disclose funding information if this is highly relevant for voters, and then only if a request is made through the Promotion of Access to Information Act (PAIA).

This was one of the arguments put forth by the DA’s counsel, Advocate Ismail Jamie, during the second day of arguments in the case brought by My Vote Counts about the disclosure of political party funding.

On Tuesday, My Vote Counts had argued that all information regarding funding of political parties should be available, and that PAIA is constitutionally flawed because it did not allow for this.

Today, Jamie said that while the DA accepted that certain types of information relating to the funding of political parties may be “reasonably required”, there were other types of private funding information that were “almost certainly not required”.

Jamie used the example of a “Mrs Bloggs” signing up to donate R50 a month to a political party. Criticising the argument by My Vote Counts that “in order to cast an informed vote or make an informed political choice, all voters need to know, on a blanket basis, every bit of information about private political party funding”, Jamie said that knowing that Mrs Bloggs contributes R50 a month to a particular political party did not aid in the voting process.

“It is inconceivable that Mrs Bloggs’ R50 influences a party’s policies,” said Jamie. He said that the application by My Vote Counts application was “devoid of facts”.

Jamie said that the “kind of donation that does impact” would be a donation from a foreign government of a large sum of money to a political party, particularly the ruling party. However, Jamie said, PAIA could be used to access this information.

This would be “highly relevant for any voter to know” because it would be “unusual” and “most odd and suspicious.”

Jamie said the relevance of the donation would depend on who made it and how big it was.
He said he was sure the average voter would be interested if the Chinese or Russian government were donating to the ANC.

In these cases, said Jamie, any claim to anonymity would be overruled by the “express public interest”.

“It is not enough to say it would be nice to have this information … That may in a general sense be so, [but] what the law requires, is that access to that information must confer upon you a substantial advantage that you would not have otherwise,” said Jamie.

He said the situation would be the same if it were a company donating to a political party.

Jamie differed from Thabani Masuku for the Minister of Justice, who argued yesterday and today that PAIA was not the correct legislation to govern the right of access to information about political party funding and that My Vote Counts should rather focus on the Electoral Act.

Jamie told the court that the request by My Vote Counts would “seek in a most dramatic way” to infringe on Parliament’s powers. “We know funding is the lifeblood of political parties, more especially of opposition parties,” he said. Even if there was a gap in PAIA, this would be up to Parliament to remedy, he said.

Referring to the founding affidavit by DA Federal Executive Chairman James Selfe, Jamie said Selfe had stated that “almost all donations” to the DA were unconditional, meaning that they did not come with any strings attached. “Because they are unconditional, they do not influence party behaviour and do not contain information that would be useful to voters,” said Jamie.

He said people did not donate to a party to try and influence the party, but because they wanted to see that party come to power, gain traction or because they believed the party would create a better life for them.

“My submission is that the vast majority aren’t going to be swayed by anodyne information about funding,” said Jamie.

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Published originally on GroundUp .

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What the lack of accountability for Marikana says about Zuma's government

The scene of the Marikana massacre in South Africa that some have named the “Hill of Horror”. Reuters/Siphiwe Sibeko

Five years ago this week 44 people were killed in the course of an industrial dispute at a platinum mine in South Africa’s North West Province owned by Lonmin. It became known as the Marikana massacre.

For many observers, Marikana was a turning point in the presidency of Jacob Zuma – who came to power in 2009 – and in the history of democratic South Africa. Even more so, it gave an early indication of the abuse of state power that’s been the hallmark of the Zuma government.

Thirty-four miners were shot dead by members of the South African Police Service in a single day, 16 August 2012. Seventeen were gunned down by heavily armed members of police tactical response teams as they left the small hill (or koppie) they’d been occupying. Others died at the hands of the police in the course of a brutal mopping up operation that followed.

Five years on, and two years after the official Farlam Commission of Inquiry into the Marikana tragedy, no-one has been held to account. Ministers have moved to new portfolios, police commanders have retired on ample pensions, or been replaced in a blaze of litigation.

Lack of accountability

Only last week Zuma survived a vote of no confidence in parliament in the wake of a series of scandals. These included compelling evidence that he and his government are in thrall to the influential Gupta family.

Zuma’s reputation as the “Teflon President” – able to shrug off charges of everything from bribery to rape and allowing the South African state to be “captured” by the Guptas and their acolytes – dates back well beyond 2012. But, when it comes to Marikana, Zuma is not the only one with non-stick credentials.

In March this year, the country’s Independent Police Investigative Directorate, the police oversight body, announced that it had identified 72 police officers to face charges. These ranged from murder to perjury and defeating the ends of justice. Since then, no further action has been taken.

Important though this is, the responsibility for the massacre doesn’t stop at those who pulled the triggers. At the outset of the Farlam Commission’s public hearings, Dali Mpofu, counsel for the miners injured at Marikana, blamed many of the deaths on ‘toxic collusion’ between the police and the mining company Lonmin.

As the inquiry progressed, Mpofu and others made strenuous efforts to blame Cyril Ramaphosa, deputy president of South Africa for the bloody denouement of 16 August. At the time Ramaphosa was a shareholder and non-executive director of Lonmin as well as a member of the ruling ANC’s National Executive Committee.

The commission itself uncovered evidence that collusion went some way beyond the police commanders and Lonmin executives on the ground. At a special briefing two days before the massacre the police commissioner for the North West province, Lieutenant General Miriam Mbombo, told a senior Lonmin executive that police were planning to move in to “kill” the strikers’ protest.

Mbombo revealed that she was acutely aware of the influence wielded by Ramaphosa. She also admitted being alive to the risk of allowing Julius Malema, who had been expelled as leader of the ANC’s Youth League, to make political capital out of the dispute.

Based on the transcript of this briefing, the Commission found that both Mbombo and the then National Commissioner of police, General Riah Phiyega, were complicit in raising political factors in their discussions about policing in Marikana. It found these discussions to be “inappropriate” and inconsistent with the constitutional requirement that

policing should be conducted in an impartial and unbiased manner.

The Commission also determined that the fatal decision to forcibly remove the striking miners from the koppie they were occupying was taken by Mbombo and not by tactical commanders with expertise in public order policing. It was then endorsed at an extraordinary session of the South African Police Service’s national management forum late on 15 August.

The commission did not find a direct link between anyone in political authority having ordered the police to take action. It did, however, conclude that the decision to remove the strikers from the koppie

was at least partly the consequence of the senior police officials feeling the need to act and to be seen to act.

This idea that the police commanders at Marikana did not need to be told what to do, or how to do it, is consistent with the social theorist Steven Lukes’ three-dimensional view of power and the ability of the powerful to secure the compliance of those they dominate without either making decisions or giving orders. The generals knew what had to be done to end a costly and politically damaging protest. They knew that it had to be done without further delay, and, if necessary, with the use of force. The result, as we now know, was the loss of 34 lives.

The way in which power, subtly but with far reaching consequences, was used at Marikana may also tell us something about how it’s used in contemporary South Africa more generally to control, perhaps even to capture, not just the police but other state institutions far beyond the criminal justice system.

Bill Dixon, Professor of Criminology, University of Nottingham

This article was originally published on The Conversation.