Latest News Archive

Please select Category, Year, and then Month to display items
Previous Archive
25 May 2020 | Story Keamogetswe Juries, Dimakatšo Veronica Masenya, Mamokoena Mokoena, and Joy Owen | Photo Photo by Magda Ehlers from Pexels

At the start of our democracy, four years into her existence, President Mbeki offered a new hopeful vision that was inclusive of our African compatriots to the north. In her rebirth, South Africa masqueraded as the land of milk and honey; a land to which the destitute, hopeless, and impoverished citizens of the rest of Africa would flee as they escaped hunger, failed states, failing healthcare systems, and certain death in the countries of their birth. In response, we treated our African neighbours variably, but most notably (and newsworthy) as pariahs of the South African state and its citizens. In short, we treated them as outsiders, akin to waste, to be erased from the South African psyche and landscape.

Yet, these African others have a history that is mired in the depths of our South African soil – they have been digging into the richness of our land, excavating diamonds, gold, and copper for decades. Mozambican. Basotho. Zimbabwean. Since the late 1970s and 1980s, Congolese, predominantly from the Democratic Republic of the Congo, first arrived in South Africa as highly educated professionals – doctors, dentists, mathematicians, and lecturers – and were employed by the South African state; then as entrepreneurs, educated refugees, and working-class asylum seekers. Soon other Africans arrived from Nigeria, Cameroon, Ghana, Liberia, Senegal, and Somalia. So too, our South Asian compatriots from Bangladesh, India, and Pakistan. 

If we are to believe headline reports over the past 15 years, acceptance of those African migrants living in South African townships has been predominantly negative, with widespread xenophobic attacks against particularly working-class black African ‘foreigners’. They have been maimed, killed, and robbed of their dignity in various ways, because their citizenship was not secured within the foothills of South African soil. They have been harangued, harassed, and brutalised, because they could not speak a South African language (or so we are led to believe); they have been questioned, humiliated, and shot at by police in random raids or random searches in the streets of Johannesburg. They have been harassed in hair salons and threatened with kidnapping; they have been thrown from moving trains, necklaced and killed in Bloemfontein, Masiphumelele, Bellville, Pretoria, Philippi, Katlehong and elsewhere in South Africa. The horror of these events, these experiences, should lead to outcries. Provide a moment of pause. And yet, they have not. 

Some commentators argue that the violence meted out against our African brothers and sisters is indicative of a violent South Africa. Xenophobia is thus subsumed under the aberrant reality of a violent South African population, as embodied and expressed through a virulent, oppressive, and toxic hyper-masculinity. To subsume xenophobic or Afrophobic violence in this way ironically captures African nationals as part of the contemporary South African story, enmeshed within our collective present of high unemployment, and continuing racial, gendered, and deep social inequalities. However, we are not encouraged to perceive this subtlety and nuance. Rather, prior to the arrival of  COVID-19 in South Africa, xenophobia were commonplace on the streets, in taxis, in supermarkets, in Home Affairs offices, at schools, at universities, at local clinics, in townships, and in barbershops; if not in deed, then in thought and in word. The psychological distancing created by the word makwerekwere – a reference to African migrants among us – still stings. 
Yet other stories exist too. For example, as xenophobia made headlines in South Africa in 2008, residents in Makhanda (then Grahamstown) protected immigrant spaza-shop owners. Women, in particular, discouraged looting of spaza shops, arguing – as elsewhere in South African lokshins – that foreing nationals fed the hungry and protected the destitute from complete and utter ruin. They allowed umama to purchase essentials such as maize meal, oil, sugar, and tea on credit. Child-headed households, old-age pensioners, and other destitute households were also assisted.

Some residents begrudgingly commented that ‘these foreigners’ worked together, combining their money and buying in bulk. By buying in bulk, they were able to purchase more products, and offer these to consumers at lower prices than their South African counterparts. The land of milk and honey had become competitive, and rather than respond to competition proactively by creating solidarity networks among themselves, many South African spaza shop owners fell into ruin.

As government’s plans for its citizens are shared during COVID-19, the silence on serving the needs of the African migrant population is deafening. Small business owners, students, barbers, cooks, hairstylists, car park attendants, pastors, traders, and entrepreneurs – they too are affected, with no recourse to government’s coffers as non-citizens. As non-citizens, government does not perceive them as bona fide beneficiaries of the state; their assumed rootlessness and statelessness leave them in a precarious quagmire, reliant on handouts from local South African and other diasporic organisations. Yet, their labour too contributes to the ticking over of South Africa’s economy. Just like you and me, they purchase food in supermarkets or vegetables from hawkers on the street; they pay taxi fares, pay university fees (much higher than South Africans), need medical care and attention, participate in illicit undertakings, fall in love, marry, live and die. More pertinently, in the time of COVID-19, they – like South Africans – also shared what they have and more with South Africans in need.


Educational migrants
From the suspension of academic activities to the total shutdown of the country, little has been noted about the experiences of African educational migrants. The suspension of academic activities on 16 March led to the closure of South African universities in an attempt to limit movement and gatherings on campuses. This reality forced students to head home. Those educational migrants who could not return home for various reasons, were accommodated by certain higher education institutions and remain in lockdown on campuses, separated from immediate family and the familiarity of ‘home’.  These are anxious times.

Stop for a moment and conjure up the feelings, smells, experiences, and attachments related to home. Imagine the smile of your grandmother, the sound of your siblings’ laughter, the earthy, homely smell of your mother’s cooking; the heat of the day, the shade sought under the tree in the backyard, gossiping with favourite cousins, your grandmother, or aunt. Get lost in the stoicism of your father, and the familiar sounds of home. The sound of padded feet moving down the passage; the click of the kettle as it boils water for the day’s morning beverage. The radio or TV tuned in to the news. All of this and more provide the backdrop of familiarity, comfort, and casual belonging, ‘back home’. All of this, gone with the stroke of an ordinary ballpoint pen held by the hand of President Ramaphosa, ratifying the closure of South Africa’s borders. Gone.

Access to medical care and attention
Hard lockdown rules, including physical distancing, curtailed movement via taxis within provinces, no interprovincial travel, and a ban on street vendors and entrepreneurs limited the movement of vectors of transmission – human beings – irrespective of nationality, race, gender, age, and profession. An early attempt at curtailing movement included the closure of South Africa’s borders, which left numerous circular and economic migrants from Zimbabwe, Malawi, and Mozambique in limbo. Provision was made for African migrants whose visas expired before or during lockdown. However, asylum seekers whose request for asylum has been denied, as well as undocumented migrants, have not been provided for. 

On 15 April 2020, the Centre for Human Rights and the Centre for Applied Legal Studies issued a plea to government to ensure the inclusion of African migrants in updated frameworks for healthcare during COVID-19. This plea was not without reason. Research shows that undocumented and legal migrants have met with disdain from various medical personnel when seeking urgent medical care in South Africa. Yet, the nature of the virus knows no borders. It doesn’t check your legality or illegality, nor does it ask to see your bar-coded South African identification document or identity card. 

The situation we find ourselves in demands that every individual resident in South Africa be screened, tested for, and treated for COVID-19. There is no room for medical discrimination, as the efforts to curb the exponential increase in the infection rate could be nullified by this act. The vulnerable among us, irrespective of nationality, should be assisted with the promise of amnesty from prosecution and persecution. The failure to include African migrants, however categorised, threatens every other individual in her environment; and as the virus is non-discriminatory, it behoves South Africans to follow suit.

At death’s door
The government gazette dated 2 April 2020 prohibits all forms of social gatherings, with the exception of funerals. As per the rules, the number of mourners attending a funeral or cremation service should not exceed fifty.  A permit for attending funerals or cremation services is obtained from the nearest magistrate’s office or police station.  The applicant must produce documents such as the death certificate, and in cases where the death certificate has not yet been issued, a sworn affidavit must be submitted. The regulation further stipulates those who are eligible to attend funeral or cremation services. Relatedness to the deceased is defined as ‘close’ and is measured by blood, marriage, and/or caregiving bonds/responsibility.

These strict measures are meant to safeguard and protect the living from infection with COVID-19.  As President Ramaphosa said, “we have decided to take the urgent and drastic measures to manage the disease, to protect the people of our country, and reduce the impact of the virus on our society and on our economy”, when addressing the nation on 15 March 2020. 

The reference to ‘people of our country’ highlights the elephant in the room – who are the people of our country? Is the reference specific to those born in South Africa, and who thus enjoy citizenship?  Or is it inclusive of migrants from the African continent, however defined? If the President’s protection extends to include migrants, how will migrant deaths be managed? The closure of our international borders have scuppered attempts to repatriate the mortal remains of the deceased; and as fears rise that COVID-19 can still be spread by the dead, will the body of an African migrant be buried or cremated in South Africa?  Health authorities advised that cremation is the best method for dealing with a COVID-19 death. Yet, in the African context, cremation is complicated as it opposes certain belief systems. Further, mortuary facilities in South Africa are scarce and hardly able to respond to the potential need created by South African deaths, whether from COVID-19 or something else. Given this context, will African migrants finally be treated with dignity and respect in death?

Not every black African migrant crossing into South Africa is illegal or disempowered. There are middle-class nurses, dentists, doctors, university professors, mechanical engineers, businessmen, and researchers. However, they are not newsworthy, as their class status often removes them from physically violent persecution in local townships. In this extended COVID-19 moment, race and class are interlinked, as during segregation and apartheid in South Africa. So is nationality, gender, and health status. Depending on the social configuration of your identity, further confirmed by the national documents you carry, your chance of surviving COVID-19 in South Africa waxes or wanes.  Your access to healthcare, to state assistance in the form of food aid or a social grant, depends on your citizenship status; and your health and/or death is mediated through your predefined status, inclusive of your citizenship. 
The South African government will have numerous obstacles to remedy the further devastation and destitution of its citizens. We hope that the idea and characterisation of South African citizens will be inclusive of our African brothers, our African sisters, and their children. Born in South Africa, these South African children have a right to safety and security, healthcare, food, and education. Their parents too. 

In the next few weeks and months, as we move through various stages of lockdown, we should not erase ‘other Africans’ in our midst. Our humanity and our collective health are intimately interwoven with the healthy existence and humanity of others – whether South African or other African – resident in South Africa. The disease does not discriminate. Neither should we.  As James Baldwin said, “Where all human connections are distrusted, the human being is very quickly lost”. And as we as South Africans often say, ‘I am because you are’. Umuntu ngumuntu ngabantu.

News Archive

The failure of the law
2004-06-04

 

Written by Lacea Loader

- Call for the protection of consumers’ and tax payers rights against corporate companies

An expert in commercial law has called for reforms to the Companies Act to protect the rights of consumers and investors.

“Consumers and tax payers are lulled into thinking the law protects them when it definitely does not,” said Prof Dines Gihwala this week during his inaugural lecture at the University of the Free State’s (UFS).

Prof Gihwala, vice-chairperson of the UFS Council, was inaugurated as extraordinary professor in commercial law at the UFS’s Faculty of Law.

He said that consumers, tax payers and shareholders think they can look to the law for an effective curb on the enormous power for ill that big business wields.

“Once the public is involved, the activities of big business must be controlled and regulated. It is the responsibility of the law to oversee and supervise such control and regulation,” said Prof Gihwala.

He said that, when undesirable consequences occur despite laws enacted specifically to prevent such results, it must be fair to suggest that the law has failed.

“The actual perpetrators of the undesirable behaviour seldom pay for it in any sense, not even when criminal conduct is involved. If directors of companies are criminally charged and convicted, the penalty is invariably a fine imposed on the company. So, ironically, it is the money of tax payers that is spent on investigating criminal conduct, formulating charges and ultimately prosecuting the culprits involved in corporate malpractice,” said Prof Gihwala.

According to Prof Gihwala the law continuously fails to hold companies meaningfully accountable to good and honest business values.

“Insider trading is a crime and, although legislation was introduced in 1998 to curb it, not a single successful criminal prosecution has taken place. While the law appears to be offering the public protection against unacceptable business behaviour, it does no such thing – the law cannot act as a deterrent if it is inadequate or not being enforced,” he said.

The government believed it was important to facilitate access to the country’s economic resources by those who had been denied it in the past. The Broad Based Economic Empowerment Act of 2003 (BBEE), is legislation to do just that. “We should be asking ourselves whether it is really possible for an individual, handicapped by the inequities of the past, to compete in the real business world even though the BBEE Act is now part of the law?,” said Prof Gihwala.

Prof Gihwala said that judges prefer to follow precedent instead of taking bold initiative. “Following precedent is safe at a personal level. To do so will elicit no outcry of disapproval and one’s professional reputation is protected. The law needs to evolve and it is the responsibility of the judiciary to see that it happens in an orderly fashion. Courts often take the easy way out, and when the opportunity to be bold and creative presents itself, it is ignored,” he said.

“Perhaps we are expecting too much from the courts. If changes are to be made to the level of protection to the investing public by the law, Parliament must play its proper role. It is desirable for Parliament to be proactive. Those tasked with the responsibility of rewriting our Companies Act should be bold and imaginative. They should remove once and for all those parts of our common law which frustrate the ideals of our Constitution, and in particular those which conflict with the principles of the BBEE Act,” said Prof Gihwala.

According to Prof Gihwala, the following reforms are necessary:

• establishing a unit that is part of the office of the Registrar of Companies to bolster a whole inspectorate in regard to companies’ affairs;
• companies who are liable to pay a fine or fines, should have the right to take action to recover that fine from those responsible for the conduct;
• and serious transgression of the law should allow for imprisonment only – there should be no room for the payment of fines.
 

Prof Gihwala ended the lecture by saying: “If the opportunity to re-work the Companies Act is not grabbed with both hands, we will witness yet another failure in the law. Even more people will come to believe that the law is stupid and that it has made fools of them. And that would be the worst possible news in our developing democracy, where we are struggling to ensure that the Rule of Law prevails and that every one of us has respect for the law”.

 

 

We use cookies to make interactions with our websites and services easy and meaningful. To better understand how they are used, read more about the UFS cookie policy. By continuing to use this site you are giving us your consent to do this.

Accept