Category Archives: The Star

The Star: In Durban, the struggle continues

Richard Pithouse

Durban, the city where Jacob Zuma has his firmest urban base, is a hard place to do politics. A good number of the people who have attained political power in this city after apartheid learnt their politics during the civil war in the 1980s.

Threats of violence are common from the top to the bottom of the ANC’s local hierarchy and violence, including murder, is often used as a mechanism of social control. David Bruce estimates that there have been about 450 political murders in KwaZulu-Natal since 1994.

In some parts of Durban it is common for local councillors to move around with men bristling with guns and menace.

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The Star: In defence of the Concourt

In defence of the Concourt

Jackie Dugard and Kate Tissington

In recent months the judiciary has come under attack for being anti-transformative. Yet the Constitutional Court’s most recent judgments reveal its true transformative credentials. They also reveal the transformative potential of the judiciary generally.

The violent dispossession wrought by colonialism and apartheid left millions of people without secure access to land. We continue to struggle with this legacy 17 years into our democracy.

On the best estimates we have, at least 7 million people live in informal settlements. Thousands more live in derelict buildings in inner cities.

Without legal rights to the land they live on, the informally housed are particularly vulnerable to eviction.

In four judgments handed down in the past two weeks, the Concourt has confirmed that evictions that lead to homelessness will not be permitted.

They are unlawful and unconstitutional. While the state and private property developers have legitimate interests in possessing and developing land, these interests must be balanced against, and may be limited by, the needs and interests of the poor.

Often, a private property developer will have to wait to take possession of his land until alternative housing can be found for those living on it.

This is especially the case where a developer purchases land knowing it to be occupied.

This fundamentally subverts the logic of colonialism and apartheid. And it cannot seriously be said that the court that has come to this conclusion is not, at least in some important respects, a transformative court.

But these decisions are important in other respects. They are critical in ensuring that the constitution has meaning for most of SA’s poor people.

And they are also important to safeguard SA’s constitutional democracy for us all. If our constitutional democracy serves only the interests of the wealthy, the adequately housed, the well-educated, the healthy and those with sufficient food, water and a healthy environment, it will not survive much longer.

SA is the most unequal society in the world.

Internationally, inequality is associated with a range of social ills ranging from high levels of violence and criminality to ill health and low life expectancy.

Equality is better for everyone. To survive as a democracy, SA must be a place where nobody wins unless everybody wins.

Consequently, the Concourt must not simply be concerned with respecting the powers and role of the executive in giving effect to the constitution. It must, at the same time, ensure that it remains in touch with, and responsive to, poor people’s struggles for equality and social justice. We see these in increasing “service delivery” protests.

These protests are poorly understood. They are not just about inefficiency, corruption and failure to “deliver services”.

They are also about participation, governance and accountability. Communities don’t just protest because they have no services. They protest because they are ignored (and often repressed) when they seek to hold the state accountable for its duty to provide them. They also protest when the goods and services are provided in a repressive, unaccountable manner.

The decisions of Blue Moonlight Properties, Pheko, Mooiplaats and Skurweplaas show that the court is sensitive to these issues – and, by extension, to the claims of the poor and dispossessed to a transformed society.

In Blue Moonlight Properties, the court held that the state, and in particular municipalities, must provide shelter to those evicted from private land.

And private landowners must wait until the state can reasonably be expected to do so before they evict people. In this decision, the court establishes an implicit hierarchy of interests. The poor sit at the top of this hierarchy. They cannot be dispossessed unless and until the state acts on its obligations to provide shelter.

And a private landowner’s interests in developing property are temporarily frustrated until this has been achieved. This does not mean that private property is ignored or subverted, as some have claimed. It means that the law responds sensibly to needs of the poor. It means that economic development cannot only benefit the already rich and powerful.

Nor can it ride roughshod over the often meagre claims of the poor and desperate.

Blue Moonlight will not end property development, much less urban regeneration in Joburg.

The obligations it imposes and the legal relationships it establishes will simply be factored into the calculations of the state and the private sector in their ordinary course of business. Nor will it impoverish municipalities, as the court made clear that national and provincial government must bear the cost of providing shelter when a municipality cannot.

These principles were affirmed in Mooiplaats and Skurweplaas. In these cases, hundreds of desperately poor people were sought to be evicted as “land invaders”.

But the court saw that the “invasion” was, in fact, a desperate act by people who had nowhere else to go.

They occupied private land that was put to no productive use by its owner because they had been evicted by another private property developer.

Here, again, the state will provide, and the private owner will get his land back.

But not at the expense of the intense suffering that an eviction without alternatives would cause.

In Pheko, the court reaffirmed the need for the state to act lawfully when it does provide services.

In that matter, several thousand residents of the Bapsfontein informal settlement had been violently evicted and relocated by the Ekurhuleni Metropolitan Municipality to a transit camp 35km from their homes, jobs, schools and existing community networks. All of this was done without a court order in terms of the Disaster Management Act. The municipality argued that it had acted in an emergency to avert disaster.

This was because the land was dolomitic. In any event, the municipality claimed, the transit camp gave the Bapsfontein residents access to a range of basic services they did not have before.

But the Bapsfontein land had been dolomitic for more than 20 years. There was no indication that it was getting precipitately worse. In truth, there was neither disaster nor emergency.

Better serviced though the transit camp may have been, it was a vast distance from the community the Bapsfontein residents had known.

All of this had been “achieved” with no real consultation, no lawful authority and in affront to the dignity of the Bapsfontein residents.

If SA’s political leaders are looking for a reason that even communities that have been provided with some services still rise up in protest, they need look no further than Bapsfontein.

The Concourt saw the municipality’s stance for what it was: a cynical manipulation of the law to achieve a violent, repressive end.

The court declared the municipality’s action unlawful and directed it to provide land and housing to the Bapsfontein residents in the immediate vicinity of their former homes.

The Pheko decision is a testament to the court’s resolve in the face of the naked exercise of power without recourse to law.

The Concourt has played, and will continue to play, an important role in transforming our society. Like any institution, it will make mistakes, it will underachieve and it will frustrate.

Despite its spectacular record on the right to housing, we feel that it could have done more to give effect to other socio-economic rights in the constitution – like water and health care – when the opportunities presented themselves. But it has never been, nor does it show indications of becoming, an “anti-transformative” court.

Its role must be debated, analysed and debated again. But the court has, this month, shown itself to be a formidable tool in the hands of those seeking a more just and equal society.

In a time of frustrated expectations, we should take no small degree of pride in it.

The Star: ‘We also have the right to see the Word Cup’ [article on the electricity war in Protea South]

The LPM in Protea South have been resisting the planned forced removal to the peripheral dumping ground of Doorkop, and plans to force them into a transit camp, for some years.

‘We also have the right to see the Word Cup’

May 24 2010 at 11:56AM
By Nontobeko Mtshali

A clash between Protea South residents over electricity saw the area being left in the cold and dark on Sunday night.

Residents from one section fought off shack dwellers who get their electricity from illegal connections in the developed area.

When the power supply tripped because of the heavy load, residents in the developed area dismantled the illegal connections at the main supply, eliciting an angry response from shack dwellers.

Residents from the informal settlement then gathered at a sports field and demanded electricity wires be reconnected.

“They must leave us alone. We’re taking electricity from Eskom, not from them,” said a resident who lives at Protea South’s informal settlement.

The man, who did not want to be identified, said residents from the developed area acted as if they were the only ones entitled to power and services.

“We all voted… all of us have the right to electricity. We also have the right to see the Word Cup. They feel they’re special because they have money.

“The electricity we use does not come from their meters, as we connect at the main supply. Let Eskom deal with us.”

Residents from the informal settlement said they had approached Eskom and the local government, but received no response from the utility and no assistance from councillors.

Protea South councillor Mapule Khumalo said the area was not connected to the electricity grid because feasibility studies showed the area was not suitable for development.

Processes were under way to move the residents to Doornkop, where RDP houses were being built, and the council had made plans with Eskom to provide temporary electricity for informal residents.

* This article was originally published on page 2 of The Star on May 24, 2010

The Star: Has our police force gone full apartheid circle?

Has our police force gone full apartheid circle?

April 10, 2010 Edition 1

Andrew Faull and Gareth Newham

When George Fivaz, an apartheid-era career policeman, was appointed the first National Commissioner of the newly democratic South African Police Service in 1995, he stressed the need for the new organisation to make a “clean and definite break with the past”.

Central to the new vision for the national police body was the replacement of the word “force” with “service” in the organisation’s name, and the replacement of the military ranks with civilian titles. The infamous Ministry of Law and Order under which the police fell was also given a new name more fitting with its intended function, the Ministry of Safety and Security.

Each of these gestures was made to promote a vision of a community-centric police agency that worked with communities rather than against them. This vision has been stoically pursued by the South African Police Service (SAPS) and the government since the early 1990s.

Among the key tenets of the reformed police service were that it be an accessible, accountable, community-orientated organisation guided by the constitution.

Fifteen years later, South Africa’s ruling party appears to be calling for an about-turn in policing.

The ministry has again been renamed and is now the Ministry of Police, while hard-talking provincial politician-turned-National Commissioner Bheki Cele has become General Cele, as of last Thursday, when the SAPS returned to a military rank system as part of a larger shift to change the SAPS back into a police force.

The irony in this move is glaring. A former apartheid police officer leads the organisation away from the brutal ways of the past, and the former freedom fighter and enemy of the then South African Police Force, aims to lead it back. Or is it that simple?

A media statement by the Ministry of Police on March 11 attempted to explain the move as emerging from the government’s stance of “fighting crime and fighting it tough”. As a result, we are told that we can expect changes in “attitude, thinking and operational duties” from the new police force.

While few would argue that change is needed in these areas, what implications might changing the names of the ranks have for policing?

Although the government appears shy to label the envisaged changes as “militarisation”, it will be difficult for the “Generals” running the police to resist this doctrine. Militarised policing is traditionally considered the opposite of community policing – the model South Africa has so far worked hard to embrace.

Militarised police forces rely less on working with the population and tend rather to see themselves as aloof warriors pitted against an “enemy”. In this sense, adopting a militarised stance on policing fits with government’s discourse of a “war on crime” in which “criminals” are cast as enemies of the people and state, much like the swart gevaar of old.

One of the ongoing challenges facing the police, and one that changing the ranks will not solve, is to identify this “enemy”. People cannot be simply labelled as “criminals” until the courts have ruled this to be the case. The ruling party has repeatedly made this point in defence of its various senior members who have faced criminal charges.

It is for this reason that a key priority if we are to reduce crime is to appoint and train more detectives who can work with communities to identify those committing crime and gather evidence against them in order to convict them in court. Militarising the police will not automatically result in highly motivated, effectively trained and well-managed detectives.

An additional concern has been that the SAPS has in recent years increasingly been called upon to act against ordinary citizens during service delivery-related protests. Scenes of crowds fleeing police rubber bullets are now perhaps as common as they were during apartheid, when police and military teamed up to suppress popular dissent.

Additionally, deaths as a result of police action and in police custody, as well as allegations of torture by police, have risen notably in recent years. Again, these are trends reminiscent of the old South African Police Force. Despite these signs of increased use of force by the police there has not been a reduction in either protests or violent organised crime.

According to Police Minister Nathi Mthethwa, “the first premise is around enforcing the highest form of discipline within the police”. This intention is certainly welcome, given the high levels of misconduct and corruption that continue to plague our police.

However, the rank changes in themselves are unlikely to improve discipline. Improvements in discipline are only likely to occur once commanders are appointed because of proven management ability and are held directly responsible for the conduct of their subordinates.

This will require improvements to the system that the public can use to register complaints when they are subject to police abuse or misconduct. Most importantly, internal investigation units and the disciplinary system must be substantially strengthened to ensure that police wrongdoing is appropriately punished and that those falsely accused are quickly cleared.

Changes to “attitudes, thinking and operational duties” might well lead to more effective policing, but this is only likely once police leadership starts proactively addressing the unnecessary use of force and torture by police officials, the high levels of corruption and the general disrespect shown to suspects and therefore all our rights.

If this does not happen, the changes the public experience in the future may be disturbingly familiar to those we have experienced in the past.

Daily News: Why Eskom will never beat the reconnectors

This article was also published in The Star as ‘Private Profits from Public Utility’ on 3 February.

Why Eskom will never beat the reconnectors

February 01, 2010 Edition 1

Richard Pithouse

The fiasco at Eskom has been oscillating between tragedy and farce at such a rate that it’s become difficult to tell them apart.

No one in their right mind is likely to disagree that Eskom, an institution that should serve the public good, has been captured by an avaricious elite and turned into a vampiric excrescence on our society.

In the wake of Jacob Maroga’s incredible demand for an R85 million golden handshake even Parliament has felt the need to pressurise the cabinet to end the ‘looting’ at parastatals.

But whatever steps are taken to address the fiasco, it seems clear enough that much of the price for the extravagant folly at Megawatt Park will be paid by ordinary people. And ordinary people will, of course, have no say in how the deal goes down.

The National Energy Regulator of SA (Nersa) public hearings into tariff increases were, as mandated public participation exercises usually are in South Africa, entirely closed to any meaningful public engagement.

At the Midrand hearings representatives from Earthlife and the Anti-Privatisation Forum were locked out of the venue by security guards, and then assaulted and arrested.

The charges of public violence were dropped the next day in what has become a standard practice across the country in which the state misuses the power of arrest as an instant punishment for citizens taking democracy seriously.

Already there are many people who have a legal electricity connection, but have to get up at four in the morning to chop wood to heat water and cook food because they just can’t afford to pay for electricity – along with school fees, transport, medical costs and all the rest.

Under these conditions unlawful reconnections are a popular strategy to sustain access to electricity.

The practice is ubiquitous, but the Soweto Electricity Crisis Committee (SECC) first organised it and gave it a public political expression.

Shack dwellers, many of whom have not been connected to the grid by the state, also appropriate electricity. This is not at all unique to South Africa. On the contrary, it is one of the universal features of shack life linking up Lagos, Istanbul, Bombay, Rio and Joburg as nodes in a decidedly international mode of urban life.

Neither Eskom’s izinyoka campaign, that tried to present the people who install self-organised electricity connections as snakes, nor the often violent raids of police and the private security companies contracted to municipalities, have had any success in teaching people to accept that they do not deserve to have electricity.

The police raids often extend beyond ripping out self-organised electricity connections, and it’s not unusual for them to include the confiscation of all electrical appliances, with DVD players seeming to be most at risk, on the grounds that they must be stolen.

But, as the police disconnect, people reconnect, and as the police steal people’s equipment, they replace it. In some cases the police go through periods of disconnecting daily, and so people disconnect themselves every morning and reconnect themselves every evening.


When middle class residents inform on their poor neighbours it has become common for shack dwellers to respond to police raids by disconnecting their middle class neighbours en masse – usually at supper time.

Sometimes an explanatory note is left at the electricity box. Once this has been done three or four times, an understanding is usually reached to live and let live.

The reality is that the attempt to stop unlawful connections has about as much chance of success as influx control had in the 1980s, or, for that matter, as attempts to stop middle class people sharing music and software.

In some cases self-organised connections are arranged in a haphazard and individualised way, and while some people are careful to use and to bury properly insulated wire, others are not.

There are real risks when open wires are left dangling in dense settlements and people have been killed. But people are also killed in shack fires, and when connections are arranged in a carefully organised and safe way by a well organised community organisation or social movement, they can be done very safely and keep whole communities safe from fire.

Following the pioneering struggle of the SECC, popular organisations and movements around the country refer to the work of organising the appropriation of electricity collectively, safely and without profit as “Operation Khanyisa”.

It is not unusual for the media to respond to self-organised electricity connections with a sometimes racialised hostility and paranoia bordering on hysteria.

Following propagandistic statements from the police and politicians, cable theft and self-organised electricity connections are routinely conflated, even though it is quite obvious that these are two entirely different practices organised by different people for different purposes.

Deaths from shack fires are routinely ascribed to drunkenness rather than an absence of electricity, but when connections are made recklessly, this is seized upon to de-legitimise all self-organised connections – including those undertaken with exemplary care.

It is regularly asserted, as if it were a fact, that all self-organised connections are made for payment. And, predictably, when Eskom’s executive looting, poor planning and massive subsidies to smelters leads to load-shedding, some newspapers are quick to blame “theft” by the poor for the crisis.

A life without electricity is one in which shack fires are a constant threat, cellphones can’t be charged and basic daily tasks become time consuming, repetitive and dangerous. It also leaves people feeling structurally excluded from access to a modern life.


There is no doubt that a critical mass of people are not willing to accept that they should be consigned to systemic exclusion and that they see the activity of appropriating electricity as a fundamentally necessary, decent and social activity.

The social definition of theft is something that changes over time, and that is understood differently from different perspectives.

In the words of a famous old English poem,
The law locks up the man or woman
Who steals the goose from off the common
But leaves the greater villain loose
Who steals the common from off the goose.

Who is really at fault when the boss of a public utility has entirely fatuous personal expenses that run into the millions and some of the “snakes” who have connected themselves up to the wires that carry the means to heat and light past them have nothing more than a couple of slices of white bread and a cup of sweet tea to cook up for supper?

In its original sense privatisation was about the process of social exclusion via private appropriation rather than the question of whether or not an institution was owned by the state or private power.

In contemporary South Africa, state ownership of key organisations is producing a degree of social exclusion and private enrichment every bit as perverse as that produced by private ownership. It makes perfect sense to hold Eskom and MTN in the same contempt.

As exclusion deepens in the wake of the Eskom crisis, people will respond with increasing popular appropriation.

For as long as Eskom continues to see public utilities as an opportunity for private profit, and electricity as a commodity for private consumption rather than a common good, civil society should invoke the tradition of civil disobedience and support communities and popular movements to resist state repression while they organise to appropriate electricity on a non- commodified, safe and carefully disciplined basis.