2008-08-15T01:38:00.000-07:00

Taken from an address by FW De Klerk to the media:

"I have taken the unusual step of asking to address you. I did so, because I am deeply concerned over a number of recent developments – developments that I fear will undermine the great national accord upon which the new South Africa has been established. That national accord is articulated in our 1993 and 1996 constitutions. It was negotiated in a process which involved painful compromises from all sides. It resulted in a solemn commitment to clearly defined principles which form the cornerstones of our new dispensation.

I believe that I have a residual duty to all those, who supported the efforts to work for an historical constitutional settlement, to stand by those agreements and - wherever I can - to help uphold the rights and values that they represent.

There is no question that a number of those rights and values are under severe pressure in the South Africa of 2008 – pressures which give rise to serious concerns.

Firstly, I am deeply concerned by the statements recently made by Julius Malema and Zwelinzima Vavi that they are prepared to kill in their efforts to support Mr Jacob Zuma. These statements cannot be dismissed as mere rhetoric and nor can there be any debate regarding their meaning. Neither can they be viewed as being inconsequential - because they have been made by leaders of two of the main formations in the ruling alliance.

They show a fundamental disregard for the values enshrined in our constitution which establishes a society based on law - where all disputes are resolved by constitutional means and in accordance with the law. The constitution also specifically prohibits propaganda for war, incitement of imminent violence and advocacy of hatred based on race.

The statements follow on the recent murders of some 65 people in xenophobic attacks. Only a few days ago, Mr Mcebisi Skwatsha, the ANC’s Secretary in the Western Cape, was stabbed in the neck by a member of an opposing faction. If the leaders of the ruling coalition publicly proclaim their intention of killing their political enemies, how can they possibly expect that any disaffected person should not feel that they have a licence to do likewise? If every group with a political grievance were to believe it has a right to kill its opponents we would very soon be confronted by anarchy.

What message do such statements send to the general public in a society where more than fifty people are murdered every single day of the year?

I accordingly welcome the firm position adopted by the Human Rights Commission regarding Malema’s statement and its admonition of Vavi. It is also appropriate that Jacob Zuma himself and Kgalema Mothlanthe have criticised the statements. More, however, must be done to make it absolutely clear that any incitement to kill will not be tolerated by any quarter in the future.

Secondly, I am deeply concerned by recent developments in our judiciary. The highest court in the land has accused the most senior Judge President of trying to influence its deliberations regarding the most senior office-bearer in the governing movement. This is dynamite! We cannot let it pass as simply an issue for domestic housekeeping within the judiciary. The complaint strikes at the heart of the independence of the judiciary, upon which our whole constitutional edifice rests.

The JSC must thoroughly and impartially consider all aspects of the complaint. It must ensure that its proceedings are as transparent as possible. Anything less will deepen perceptions of interference by powerful political forces

All this comes at a time when the judiciary finds itself under increasing pressure from the executive. A constitutional amendment and various bills aimed at making the judiciary “more responsive to the aspirations of the people” were first gazetted in December 2005. After a vociferous outcry in which all living Chief Justices participated, they were withdrawn in July 2006.

However, at its Polokwane conference last December, the ANC once again called for the implementation of far-reaching reforms of the judiciary before the end of the present government’s term of office. The reforms would resurrect many of the aspects of the Bills that were withdrawn in 2006 - including transfer to the Minister of Justice of ultimate responsibility for “the administration of courts, including any allocation of resources, financial management and policy matters”.

Everywhere the dividing lines between the state and the ruling movement are becoming more blurred. The Polokwane conference adopted a resolution requiring “all senior deployed cadres in various centres of power to go through political classes to understand the vision, programme and ethos of the movement.” Presumably these centres of power include the public service and the security forces – institutions which globally are required to be objective and distanced from political involvement.

On top of this, the incoming National Executive Committee was instructed “to give strategic leadership to cadres deployed in the state and to improve capacity to hold cadres deployed accountable”.

Everywhere the executive and the ruling movement are using their power to intervene in areas of public life where they simply do not belong. The Polokwane conference resolved that the media should “contribute towards the building of a new society” and that the arts and culture should “serve the purposes of its National Democratic Revolution”.

The Minister of Health has been given powers in recent legislation to appoint the board of the association that represents the medical profession. She is intervening in the private health sector in a manner that threatens to cripple private medical care and the world standards that it has been able to maintain. Recent policy proposals on the Legal Services Charter would also give the Minister of Justice excessive powers. In the sporting field the Minister has been given powers to interfere even in the selection of teams. How can all this possibly be reconciled with the democratic principles and advancement of freedom on which our society has been established?

The most serious blurring of the lines between political party, the National Executive and the Institutions of the State has, however, centred on the Polokwane resolution to dissolve the National Prosecution Authority’s Directorate of Special Operations - the highly successful crime-fighting unit otherwise known as the ‘Scorpions’. In the absence of any cogent explanation the perception is taking root that once the unit is disbanded, the final decision as to who should, and who should not be prosecuted will be taken by the government and not by a constitutionally independent body. In effect, the ruling party would have the ability to place itself above the law.

Finally, I am deeply concerned by the nature and implications of the Expropriation Bill that is currently being considered by parliament. The property provision - Section 25 - in the Constitution was one of the most intensely debated and contested elements in our national accord. The final text reflects a carefully crafted balance between the need to protect bona fide property rights on the one hand, and the unquestioned need for land reform on the other. The fulcrum of this balance was that, failing agreement, just and equitable compensation would be paid for expropriated land and that affected parties would have proper recourse to the courts should they not be satisfied with the amount of compensation.

The Bill destroys this balance by striking at the heart of property rights. Its purpose is “to provide for the expropriation of property, including land, in the public interest and for public purposes…” Its purview thus includes all property. Any property can be expropriated in what the Minister construes to be in the “public interest”. In terms of its provisions
· the Minister can expropriate property - which could include shares - on behalf of a “juristic person” - which could be a private or public company - if the juristic person reasonably requires the property in the ‘public interest’ and has failed to reach agreement with the owner;
· the expropriating authority will determine the amount of compensation that can, specifically, be below market value;
· the courts cannot overturn compensation awarded by the expropriating authority but can only refer it back for reconsideration; and
· the court’s role is further restricted to review the decision to expropriate.

The Bill is, in our opinion, unconstitutional. It will also have very serious consequences for our economy. The degree to which compensation falls short of perceived fair market value will be regarded by markets as unfair deprivation of property. The degree to which the role of the courts in deciding compensation is restricted, will likewise determine perceptions of the arbitrary nature of the expropriation.

The consequent perception of arbitrary deprivation of property will have a very negative impact on national and international investor confidence - and will seriously damage South Africa’s international credibility. At a stroke much of the excellent work that the government has done over the past fourteen years to establish South Africa’s credit-worthiness could be undone."

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