South Africa should create a fund to compensate victims of crime

South Africa’s police face many civil claims by crime victims.
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South Africa is plagued by crime. Violent crime, in particular, has reached epidemic proportions. The country has some of the world’s highest murder, assault and rape rates. So how does – or how should – the law respond to this problem?

One option would be to try to prevent crime from taking place in future. But available crime statistics for the last decade suggest that without a major overhaul of policing and the introduction of coordinated social responses to fighting crime this is unlikely to happen.

Another possibility, then, is to ask: now that crime has already taken place, how does the law help victims? Criminal law provides a pathway to punishment. Some victims, though, want compensation for their harm. They must rely on civil law, also known as the law of delict. This is the branch of the law that deals with the compensation of harm caused wrongfully and culpably by others.

South Africa’s legal position when it comes to crime victim compensation is unsatisfactory. In my doctoral dissertation I sought to establish whether creating a compensation fund for crime victims could be justified. I also wanted to know whether such a fund would be appropriate in the South African legal context.

I examined the current legal position and also considered the experiences of legal systems that have already introduced statutory compensation funds, such as the UK and the Netherlands. In principle, I found that providing a similar form of statutory relief for crime victims would be justified in South Africa.

The status quo

As in most other jurisdictions, crime victims in South Africa generally don’t institute civil claims against the actual perpetrators of crimes. This is because criminals are almost never in a financial position to compensate.

This has prompted a development of South African law that has produced, among other things, unwarranted financial consequences. Essentially because perpetrators cannot compensate them, crime victims have argued that the state – typically the Minister of Police – should be held vicariously liable. In these cases it’s argued that state employees (mostly police officers) culpably and wrongly caused victims’ harm, either by action or inaction. There’s also more chance of receiving compensation in a civil case against the state, since it has deeper pockets than most perpetrators.

This strategy has been remarkably successful. It has led to the considerable expansion of the state’s liability for harm arising from crime. Claims against the police and the value of these claims have risen exponentially in the last decade. This widened liability is reflected in a report that sets out the scope and impact of the significant rise in civil claims against the South African Police Service.

And, in 2017, the parliamentary portfolio committee for police indicated that the civil claims instituted against the Minister of Police in the 2015/2016 financial year amounted to R14,6 billion.

The committee warned that this high number could lead to 3000 police officials being retrenched between 2017 and 2019. This means that increased litigation and the resulting increase in state liability could actually decrease the police’s ability to prevent crime. South Africa’s law of delict therefore appears to be caught in a vicious cycle of ever-expanding state delictual liability for harm arising from crime.

Given these costs and their implications, it may be sensible to consider whether there is an alternative way of securing compensation for crime victims. One possibility would be a crime victim compensation scheme. This would involve drawing up new legislation around the law of delict.

Typically, these schemes are funded by taxpayers and take over the primary responsibility of compensating crime victims.

A justified step

Such a large-scale legislative reform of the law of delict would require justification. When the South African Law Reform Commission investigated the possibility of establishing a fund in 2004, it said:

developing a motivation for the establishment of a [statutory compensation fund] in South Africa remains incomplete, and must be completed if legislation is to be drafted, since no law should be passed without its objectives being clearly defined and costed.

It would also necessitate an affordability analysis: can South Africa afford to put such a system in place, and what would it cost?

My research responds to the commission’s finding and, after considering the current legal position in South Africa as well as the experiences of legal systems that have already introduced statutory compensation funds, I conclude that, in principle, it would be justifiable and appropriate to establish a compensation fund for crime victims in South Africa.

Bernard Wessels, Lecturer in Private Law, Stellenbosch University

This article was originally published on The Conversation.

Lessons about history by twitter: two South Africans go head-to-head on slavery

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A recent exchange on Twitter between South African TV personality Sizwe Dhlomo and Western Cape Premier Helen Zille, is worthy of close examination because it raises important questions about how history is viewed, how debates unfold on social media and how South Africans deal with racism and diversity.

Initially, Dhlomo basically baited Zille by redirecting a tweet by the King Centre – an advocacy group set up in memory of Martin Luther King – which issued a blunt proclamation that:

There was nothing righteous, just or positive about the Transatlantic slave trade or slavery in America. Nothing.

Zille replied:

I agree, there was absolutely nothing positive about slavery or the slave trade. If you read the transformed (South African) history textbook… you will see the acknowledgement that despite its many evils, colonialism helped end slavery in parts of Africa.

Dhlomo then responded:

You, like it or not, are a beneficiary of colonialism, albeit indirectly. Your biases, whether you’re aware of them or not, make it unlikely for you to be able to accurately weigh up the negatives of colonialism versus the positives you speak of.

After asserting that the motive of colonialism was never to ultimately benefit the colonised (an assertion with which Zille agreed), he rounded off by posing the question whether or not there might have been alternative historical alternatives to colonialism:

Without colonialism, were the colonised nations doing well? Would they have continued to do so and develop at their own pace?

before providing his own answer:

I see no reason why the answer would be no.

Four points can usefully be made about all this. The first is about the limitations, and dangers, of engaging in serious debates on Twitter; the second is that reducing history to simple matters of right or wrong is fraught with risk; thirdly, the need to recognise that history can be contradictory; and finally that history, is and always has been, contested.

The inappropriateness of Twitter

Twitter is inappropriate for complex historical debates. There is just too much to be said in defence of any position – whether conservative, liberal or radical – for it to be reduced to exchanges of 280 characters or less. The process of assessing the motivations, dynamics and impacts of colonialism by scholars is both constant and continuous, and reducing historians’ debates to trite summaries is dangerous.

This is not to say that the history should be the property of only the historians, and that ordinary people should keep out. History is, after all, actually as much about the present as the past. But we should beware of the misuse of history for political point-scoring.

Yet if Dhlomo may be considered as guilty of this, Zille has only herself to blame for setting herself up as a target by her initial ill-advised tweet on colonialism sent more than a year ago while she was in Singapore.

Just as Twitter can’t encompass the complexity of historical debate, reducing history to matters of simply right or wrong, or good or bad, is similarly fraught with risks. This was gloriously and famously illustrated by 1066 and All That, by WC Sellar and RJ Yeatman, published as long ago as 1930, which reduced English history to a hilarious parody of good and bad kings and queens.

The fundamental point is: history is almost always contradictory, moving in different directions at the same time.

It would seem that this is the major point that Zille wants to make in her various tweets and more extended comments about colonialism. She will claim that she is not defending colonialism, and the racism inherent in it, but pointing out that, like God, it moves in a mysterious way.

In her defence, we might reference debates about the origins of the “developmental state” in Southern Africa. Broadly, a number of radical scholars (by that I mean not conservative ones) have explored how settler colonialism fostered capitalism development. Examples include Bill Freund’s “SA Developmental State of the 1940s”.

In South Africa, for example, the launch of parastatals – such as the power utility Eskom in the 1920s – fostered rapid growth and the creation of an Afrikaner bourgeoisie. In Marxian terminology, state policies helped develop the forces of production – but only for the benefit of white people in general, and Afrikaners in particular.

Would South Africa have industrialised as fast, or in a more beneficial way, without such a white-driven developmental state – as Dhlomo implies? Frankly, we don’t know. Nonetheless, we must allow that counter-factual history, the exploring of possible alternative historical paths that might have been followed if A and B had not happened, is a legitimate line of enquiry. Yet it can never be a substitute for exploring what did happen.

History is always contested

While Zille should not be pilloried for indicating that history is contradictory, she needs to be far less slapdash in lauding what she perceives as the benefits of colonialism. Her exchange with Dhlomo on slavery offers a prime example.

Let’s not be so politically correct that we have to deny the fundamental truth of Zille’s proposition that the colonial intervention involved the attempted abolition as well as the promotion of slavery. However, the problem is not what she says but what she does not say. We need to ask, for instance, why and how the British chose to bring slavery to an end.

The “why” must necessarily refer to the heroic labours of the anti-slavery movement of the day. But it also needs to be pointed out that abolition featured slave-owners being compensated by the state, whereas the slaves themselves received nothing.

In addition, much of the compensation was redirected into investment in the then rapidly expanding railway system in Britain, thereby providing a direct boost to the development of capitalism and colonialism.

We might also want to remember that when the American Civil War broke out, Britain initially supported the South, as it wanted to avoid the disruption of slave-produced cotton to its textile mills in northern England.

In short, it’s all so much more complicated than any attempt to produce a historical balance sheet in which the good of colonialism may outweigh, or at least compensate for, some of its negative impacts. Historians of whatever stripe, and certainly not politicians, cannot be allowed to omit inconvenient facts.

Yet while Dhlomo may be granted as much space as he likes to explore and condemn the brutalities of slavery and colonialism, he cannot be allowed to argue, as he did, that Zille’s historical judgement is inherently flawed by the inherent biases which flow from her being “a beneficiary of colonialism, albeit indirectly”.

This is dangerous nonsense. For a start, it assumes there is such a thing as “correct” history. There is not. History is always contested.

More saliently, Dhlomo’s assertion is absurdly deterministic, implying that social background (in today’s South Africa, read “race”) dictates the capacity to “understand” history. This is rubbish. True, it is very likely that the social experiences of being black will provide some major comprehension of colonialism. But it does not follow that being white necessarily blocks such understanding.

If it did, then Marx’s thoughts on colonialism should themselves be deleted from the black reading list.

Roger Southall, Professor of Sociology, University of the Witwatersrand

This article was originally published on The Conversation.

Prosecuting Malema

Malema was calling for #783 to have his day in court. 

Now that Afriforum has indicated that they will bring a private prosecution against Malema, if the NPA fails to prosecute, giving Malema his chance to clear his name , Malema plays the race card. 

If he's not guilty, he should go to court, face the music and clear his name instead of shouting " bloody racist " .

If Malema wins his case in court, the whole world will know that he is innocent . To recap, the NPA did want to prosecute Malema on fraud and corruption charges but on the day his trial was about to begin, the judge struck the case off the court roll because a co-accused was not present in court . So in other words Malema was never pronounced innocent by the court and his case can be re-enrolled by the NPA at any time. 

The question is, why did they not do it a long time ago ? This has always struck me as suspicious and the only explanation is that the NPA deliberately found a way to scupper the case through the non presence of the co-accused. 

This could only have been done because of political motivations, maybe to get Malema back in the ANC. If there was no Afriforum and Adv Gerrie Nel, the likes of Malema and Duduzane will always remain above the law. 

The NPA only decided to charge Duduzane Zuma with culpable homicide after Adv Gerrie Nel threatened a private prosecution . This proves that we need Adv Gerrie Nel's private prosecutions unit to force the NPA to do their jobs without fear or favour .

By Daniel Sutherland

Obstacles facing a young black farmer in South Africa: a personal story

The cabbage plantation on Lonwabo Jwili’s farm emerged from the toils that up-and-coming black farmers have to endure.
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A new sense of urgency has entered South Africa’s land reform process after the country’s parliament took a resolution to amend the constitution to effect land expropriation without compensation. But even this will fail if the country doesn’t improve support for small and emerging black farmers who should be allocated a prime role in any reform process.

International experience shows that small and middle-range farmers play a critical role in land reform processes. For example, research on Zimbabwe shows increased productivity on small and medium-sized farms after land reform.

In my research, I found that South Africa has failed to take advantage of the “middle farmer” factor. Support from government is grossly insufficient; banking support is almost non-existent.

Black people who venture into commercial farming are bound to fail. Commercial farming is a capital intensive business. The battle to secure support has forced many struggling black farmers to rent out their land to established white farmers.

The situation is made worse by the fact that what limited state support there is has been hijacked by corrupt elements or a small authoritarian rural elite. A selected few politically connected individuals have begun to dominate the space.

Lonwabo Jwili.
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If this is left unchanged, South Africa is likely to see more black commercial farmers being forced out of the space. Some may turn to renting out their land, others may sell their properties back to white farmers. This will render the land acquisition process futile.

The experiences of a young black aspirant commercial farmer named Lonwabo Jwili, who has bought a small piece of land near Johannesburg, are a case in point. He highlighted his challenges in a conversation I had with him.

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Would you advise young black South Africans to go into farming?

I would advise them to go into farming only if they have passion for it. Farming is not like most jobs. It’s extraordinarily hard and requires lots of patience which runs out if not accompanied by loads of passion.

Farming will break and bankrupt you. It will test your mental strength.

From your experience, what are the three “make or break” interventions for young black farmers?

Access to information, finance and markets.

Access to information: My experience tells me that young black people who try out farming face a dearth of information about critical aspects. For example, you don’t find readily accessible information on planting practices.

I think this is a function of the fact that the country doesn’t have a very good extension service programme – a worldwide practice of professional agents who help farmers improve productivity by providing advice, information and other critical support services.

The Department of Agriculture is meant to run an extension service programme. But in my experience, it’s very poor to non existent. The only time extension officers have been to my farm was when they came to give me advice on my irrigation system. And it turned out to be very bad advice.

In my case I certainly needed good information to make headway because I ventured into unknown territory. Yes, I grew up on a farm. But my homegrown farming knowledge was on livestock. I’m currently producing vegetables and some grains. A well functioning agricultural extension service would have saved me time and money.

Access to finance: Everywhere you look in South Africa there are claims that the country provides financial support for small and emerging farmers. The banks and state owned development finance institutions make this empty claim.

The Land Bank is a perfect example. It is supposed to develop small black farmers like myself. But it’s almost impossible to get funding from the Land Bank.

When I tried to apply for finance to purchase the farm, the Land Bank sent me a two-page list of requirements. I could satisfy everything on the list except for one thing: they required off-take agreements (that’s a pre-assurance from a business that it will buy my produce).

Its almost impossible for someone like myself with no commercial farming experience to get off-take agreements from a market dominated by a few mainstream retailers.

Big retailers – and even smaller ones – won’t offer an off-take agreement to someone starting out.

And so the Land Bank wouldn’t dare take a risk on my endeavour. So I took a different route, approaching a bank for a normal loan and bonding my home against the farm property.

But even here I struggled. I think that finance institutions also need to understand that there is a different kind of farmer emerging. One’s like me. I’m not farming full-time because I can’t yet afford to do so. My off-farm job funds my seed, fertiliser and pays my staff. I need to keep my off-farm job while building the farm into a self sustaining operation. The banks I approached didn’t seem to want to grasp my situation.

Access to markets: This is the most critical factor of farming. For example, even when I produced 17 000 cabbages last season I still struggled. That’s because I was only able to find a market for them when it was too late – they’d been in the ground too long.

I’m also disadvantaged by distance. My vegetable and grain producing farm is 70 km outside Johannesburg so it’s difficult to access the big city markets.

But with the assistance of family and friends, I managed to secure another retailer to pick up my produce. In hindsight, I should have tapped these networks first before going for big markets like the Pretoria and Johannesburg fresh produce markets which offered me unacceptably low prices.

What can be done to support young black commercial farmers?

I think the government should review its programmes to see if they are actually working or not.

They might want to reconsider their focus on rural communities. Yes, rural communities need assistance in terms of development. But the government also needs to acknowledge operations like mine which are located within a 100 km radius of a big city.

I am halfway into becoming a sustainable farmer. I’ve purchased the land and am producing the best products possible. I think operations like mine deserve some state support.

Right now I don’t necessarily need financial support from government. But it could help facilitate other types of support for farmers like me. For example, government could facilitate access to markets and to farm production machinery such as advanced tractors, ploughs and other implements.

The private sector could also come to the party. Banks are critical players. They need to realise that there are young black entrepreneurs who want to farm. They need to create financial products – like loans and insurance – that are going to assist emerging farmers. Currently their products are focused on serving established farmers.

After I had bought the farm using my own funds I approached three banks to secure finance for farm production and machinery. I was rejected on the basis that I had no farming experience.

Banks need to look at things differently. I’m not calling for banks to be reckless in their lending. But I have been taken aback by some of the banking practices I’ve seen.

For example, I can qualify for normal credit, but not for an agricultural specific financial product. I could easily apply for finance to buy a Mercedes Benz worth about R200 000 to pay over five years. I could borrow the same amount as a cash loan. But the answer was “no” when trying to secure funding for a tractor worth R 1 million.

Banks need to be more innovative by designing ways of lending, for example, that move away from monthly instalments and towards seasonal instalments in line with agricultural cycles of planting and harvesting.

Mnqobi Ngubane, PhD candidate, University of the Western Cape

This article was originally published on The Conversation.

How the law can help change racist minds in South Africa

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Much recent news and public discourse might seem to indicate that South Africa’s non-racial rainbow is fading. Racism, its expression and its consequences, seem to be all around.

First prize goes to former real estate agent Vicki Momberg. She was recently sentenced to a three year jail term (one year suspended) for the vicious racial abuse of black traffic officers and police emergency call centre operators attempting to help her after a smash and grab incident.

Then there is the land reform debate. Its enormous complexity is swept aside by both black populist politicians demanding the return of land “stolen” by whites and the white right claiming that white farmers are under siege and fear for their lives.

In reply to Business Day columnist Peter Bruce’s stating that the extent of farm murders has been grossly exaggerated, a white correspondent to the newspaper cited approvingly the man generally accepted as the architect of the brutal policy of apartheid, Hendrik Verwoerd:

Verwoerd felt that the only way whites in SA would survive would be if some system could be devised to that they could maintain control of their destiny within a Western framework. Otherwise, they would simply be overwhelmed… Now we are experiencing what Verwoerd predicted. Whites are being bullied incessantly and deprived of their assets by black politicians.

How on earth should South Africans deal with all this? There is, frankly, no easy answer to this question. But here are a few considerations.

Complex problem

Journalist Joshua Carstens, writing on News24, suggested that Momberg’s crude racism was “simply the tip of an iceberg”. He had no quarrel with her sentence, but wondered whether it would work. He argued that while it might be possible to regulate people’s behaviour,

you can’t legalise people’s minds and hearts.

Unexpressed racism may be even more dangerous if it is left lurking below the surface. He went on to encourage like-minded whites to take a stronger stand against racism in their private lives.

Nothing wrong with that at all. Indeed, its sentiment is highly commendable. But, would it really be better if racists displayed their honesty by roundly abusing black people? Or is it better if they curb their lips for fear of joining Momberg in jail?

Legislation changing minds

It’s wrong, I think, to suggest that legislation cannot change minds. True, it might often take the long haul. But laws do more than reflect social norms: they mould them.

The law is meant to entrench what society thinks is right. If it prescribes that racism, sexism or homophobia are wrong, there is probably a better chance that people will come to accept it in genuine democracies (especially over the generations). But the law can also be used to effect structural change.

Take for instance black economic empowerment and equity employment legislation. Their pros and cons are much debated, yet it seems difficult to deny that without them, South Africa would have a much stronger white minority profile today than it would without them.

For all their faults, such laws and associated state pressures for “demographic representivity” would seem to have been a necessary element in decolonising society. This is not to deny that they come with numerous difficulties.

This is shown by the case of Mark Lamberti, chief executive officer of Imperial Holdings. He called Adila Chowan, a Muslim Indian woman who had become group financial manager at the company’s subsidiary, a “female employment equity” candidate in the presence of other senior managers. Lamberti was convicted in the High Court of impairing her dignity and ordered to pay her costs and yet to be decided damages.

Lamberti has responded by insisting that he is not a racist. Whether or not his actions were racist were not dealt with by the court; the judgment was that he had offended the complainant’s dignity. Whether or not one’s view is that he was racist and/or sexist, it is beyond doubt that his behaviour was thoroughly crass.

Nonetheless, it points to a dilemma.

Constructive ambiguity

Equity employment is designed to promote fairness in the workplace and black upward mobility in the face of white structural privilege. But the irony is, as Chowan has so bravely highlighted, black and female candidates resent being labelled as equity employment candidates.

They point out, correctly, that it is demeaning to any black or woman appointee to say that they got the job because they were black or female. They want to be recognised as having been appointed on merit. Yet the problem is that without such goads as equity employment legislation, progress towards racial equality in the workplace would almost certainly be a lot slower.

South Africa’s main opposition party, the Democratic Alliance, is wrestling with this very issue . The party has long claimed that it has become increasingly racially diverse as the governing ANC has in practice and much rhetoric withdrawn from non-racialism. Yet although the DA now has a black leader in Mmusi Maimane, there has been rising discontent among its black membership that the party is still dominated by a conservative old guard of whites.

This has led to calls for the introduction of race-based quotas, which many in the party have resisted. They complain that such group determined racial categorisation would run against the DA’s liberalism, which is based on the advancement of individual rights.

Reportedly, the party’s senior leadership arrived at a compromise proposal for putting to the DA’s federal congress which committed it to taking,

active steps to promote and advance diversity… without recourse to rigid formulae or quotas.

Complex problem

What should be drawn from all this? Probably many things. But one certainty is that more humility is necessary from all those engaged in the debate. People must accept that there are no easy answers. The project of rendering South Africa more equal is one of enormous complexity, fraught with as many philosophical problems as structural and political ones.

Alas, there will be more Mombergs, more Lambertis and more people seeking to revive Verwoerd and render his memory respectable. There will be more black populism in response.

Yes, it’s almost certainly going to be a rough ride, but those South Africans who don’t believe or don’t want to believe that a better South Africa is possible should be honest about it – and bugger off elsewhere.

Roger Southall, Professor of Sociology, University of the Witwatersrand

This article was originally published on The Conversation.