As seductive as certain perspectives of international law may appear to those who disagree with the outcome of the interpretative exercise conducted by this Court in the contempt judgment, sight must not be lost of the proper place of international law, especially in respect of an application for rescission. The approach that my Brother adopts may be apposite in the context of an appeal, where a court is enjoined to consider whether the court a quo erred in its interpretation of the law. Although it should be clear by now, I shall repeat it once more: this is not an appeal, for this Court’s orders are not appealable. I am deeply concerned that seeking to rely on articles of the ICCPR as a basis for rescission constitutes nothing more than sophistry.
Two reports on very distinct issue caught my eye this morning. Could this be the wake-up call we need – after an embarrassing week in which we all had to come to grips with the irresponsible and seemingly insatiable appetites of our President? First, the Daily Dispatch – that feisty newspaper in the Eastern Cape who fearlessly exposes the nepotism and corruption of the government in that province – reported that the Eastern Cape provincial Health Department has gone bust with debts of R1.8 billion, and cannot pay creditors or nursing staff their special payments until the new financial year.
As part of a dramatic clean-up of its finances the province will also disband its existing bid evaluation committees, Health Department spokesperson Sizwe Kupelo confirmed. According to the Daily Dispatch the shock announcement is a forerunner to further drastic action when heads may roll and resignations are expected. About time, some would say.
Then I read in a Business Day report that Deputy President Kgalema Motlanthe said yesterday (standing in for the rather fatigued President Zuma) that the government could no longer tolerate the current status of Black Economic Empowerment (BEE), which in the past 15 years had benefited a handful of individuals.
“Only a few benefited again and again from the bounty of black economic empowerment,” he said. The “truly marginalised” — women, the rural poor, workers and the unemployed — were left on the sidelines. It was important to look at BBBEE beyond business deals and shareholding in companies, to include equipping people to run their own businesses. “More must be enrolled in skills training and more should have access to arable land.”
Juxtaposing these reports seems to go to the heart of many of the problems faced by South Africa and by the government of the day. Let’s face it: the government seems to be caught between a rock and a hard place.
On the one hand, there is an ethical, political and constitutional imperative to speed up the racial transformation of all sectors of the economy and society (the state having been thoroughly transformed already). This transformation has not happened in the manner one would have wished. A few well-connected individuals have made billions from government contracts and BEE deals and some others have landed cushy government jobs.
But the vast majority of South Africans have not benefited from so called Broad Based Black Economic Empowerment (BBBEE) or from affirmative action policies – both because of resistance to racial transformation by certain members of the white community and because of greed and nepotism on the part of members of the new, politically well-connected, elite.
On the other hand, there are grave dangers inherent in speeding up this process of transformation – as the lack of service delivery in the state sector clearly shows. Because we are still struggling with the corrosive consequences of apartheid and the Bantu education system, because our post-apartheid education system is not working properly and are not producing enough highly skilled black graduates and technicians, and because a culture of nepotism, corruption, laziness and greed has taken hold among many who see their friends and family unjustifiably benefiting from BEE deals and government contracts without having had to do any work, the speeding up of transformation often has disastrous consequences.
People who are incompetent, lack the necessary experience and skills or the necessary commitment to service delivery, are often appointed to “affirmative action” posts in the civil service because they happen to have family connections or are close to politicians or senior officials. This leads the kind of mess we now see in the Eastern Cape health department.
Make no mistake (as President Barack Obama likes to say) poor and vulnerable people – like many of the long-suffering citizens of the Eastern Cape who depend on the state health system – suffer most when transformation fails to produce a better life for all. The acknowledgement of our Deputy President that part of the solution is more education and skills training, is therefore a good sign.
At least some in the government (those who have not bought into the tenderpreneurial culture, and the Kebbilism, spouting fake populist slogans while driving around in million Rand cars) understand that given our history and the present state of our education system, there is a tension between the very real need to speed up transformation and the need for effective and efficient service delivery.
The only way to deal with this is to invest financial and human resources into education and training in both the public and the private sector. Teachers who are unable to teach properly should be retrained and those who do well should be rewarded (but for that to happen the government will have to stand up to the South African Democratic Teachers Union, something it is probably too scared to do). Businesses must be forced to invest in training and skills development and ways should be found to punish – rather than reward – the kind of window dressing affirmative action and fronting that some of them engage in.
What we as a society need to do is to agree on some kind of social pact. Some white people who still resist transformation and cannot see that their own interests – along with the interests of their fellow South Africans – depend on the implementation of successful transformation measures, should stop their nonsense and come to the party. We should all confront the explicit or implicit racism that informs the views of such people who often believe deep down that black people are not as capable as whites merely because of the colour of their skins.
But that would not be enough.
Some black people who pretend that there are no skills shortage and that there are no problems with the way in which BEE and affirmative action are sometimes implemented, should face up to these facts and should acknowledge the problems. (Luckily some in the government are already doing so, but they are in a life and death struggle with the tenderpreneurs and Kebbilists who chooses short term personal gain for themselves over long term prosperity for all.)
So why do we not call a truce on this silly debate on affirmative action and BEE and all agree that it is not only an ethical necessity but also an absolute requirement for the long term success of our country? Then we can start to devise ways in which we can implement these policies in a way that will not favour the few greedy Kebbilists, but the majority of us – black and white – who wish to see a prosperous and growing country in which no one goes hungry, everyone has a house and all children (even all the known and unknown children of our President) get a good education that will allow them to reach their full potential.BACK TO TOP