Opinion: The 2015 Kham Judgment

Disclaimer: I am not legally qualified.

The onus on the IEC with respect to proof of residence

The way I read this judgment, 5(c) can be summarised as requiring that the IEC “ensure that the voter is registered in the VD where they are ordinarily resident”. [59]

In my opinion, 5(c) can be broken down into:

  • the Electoral Commission is obliged to obtain sufficient particularity of the voter’s address [65], [68], [118]
  • to enable it to ensure that the voter is at the time of registration ordinarily resident in that voting district. [64], [66], [92], [117]

I find that [117] & [118] when compared with [65] & [66] are contradictory:

“The IEC is also labouring under a misapprehension, which this judgment should help to dispel, that it is obliged to verify voters’ addresses when they register. That is incorrect. What they are obliged to do is obtain sufficient information from the voter as to their ordinary place of residence, to ensure that they are registered in the correct voting district and correct ward.” [117]

“the IEC must endeavour to ascertain from the person coming to register an address, where they have a physical address, or some detail that will serve as an address for the purposes of the roll. But if there is none then, provided they are registered in the correct ward, they must be registered and the absence of an address does not affect the validity of the voters’ roll.” [118] (The judgement may erroneously be referring to “ward” here instead of “voting district”).

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“That obligation may not have required the chief electoral officer to undertake an investigation of the accuracy of the address given (although, in a society where one cannot lawfully acquire a mobile phone without providing such proof, one wonders why not), but it certainly required that the information given in regard to the voter’s ordinary place of residence had to be sufficiently clear to ensure that the voter could be accurately placed in the correct voting district. A generic address, whether that of an informal settlement, such as Crossroads in Cape Town or Bester’s Camp in Durban, or that of an upmarket suburb, such as Constantia in Cape Town or Morningside in Durban, is simply insufficient for this purpose.” [65]

“When a voter comes to register as such, it is for the IEC and its officials to procure as much information from that voter as is necessary to enable it to perform its statutory obligation and ensure that the voter is registered in the correct voting district and hence, for the purpose of municipal elections, in the correct ward. In almost all cases this will be relatively easy but in some instances it will present challenges. It is the IEC’s responsibility to resolve those challenges.” [66]

If a generic address [65] is not considered sufficient, then how can no address [118] be considered acceptable?

While I do not believe that the IEC could be reasonably expected to verify the address of every person registering to vote, and neither does the Judgment, registrants will have to provide enough information to make it clear where they are ordinarily resident and where they should be registered. Whatever this information is – whether an address or not, should be recorded.

Indeed, the IEC cannot meet its obligations in 5(c) if it has no detail whatsoever upon which to base its decision to register a person in a particular voting district.

Providing voter addresses to candidates

My reading of 5(d) can be summarised as reminding the IEC that is obliged to comply with the Electoral Act, 16(3) in particular. [37]

In my opinion, the specific wording of 5(d) in the judgement fits the by-election related context of the case – and provides clarity with respect to to 16(3) in that context. [74],

However, it also re-asserts that the IEC is obliged to comply with 16(3) in full. This assertion seems to be supported by the IEC’s own pre-emptive remarks to the effect of provides addresses in all future voters rolls supplied to “contestants”.

What is of specific relevance to political parties is that 16(3) naturally follows from 16(2), and 16(1) and their applicability is thus also reasserted by this judgement.

The specific value is that 16(3), when read with 16(2) and 16(1) compels the IEC to:

  • provide a copy of the Voters’ Roll
  • as it exists at that time
  • including addresses where available [51], [118]
  • to any person or any political party contesting the elections
  • who [have] paid the prescribed fee

Thus, any person or political party contesting the elections should at any time be able to request the Voters’ Roll as it exists at that time and be supplied with a copy that includes addresses where available. [53]

Noteworthy sections of the judgement

“To construe section 15 in the restrictive fashion suggested by the IEC might advance bureaucratic interests, but it is not consistent with its broader obligation to create an environment in which free and fair elections can take place in which all qualified citizens may participate either as candidates or voters.” [52]

 

“The applicants’ right to relief is not constrained by the need to show that the result of the election would have been materially different had the incorrect registrations not occurred.” [56]

 

“In August this Court stressed the importance of permitting all citizens to vote in the absence of any justifiable limitation of that right. It accordingly set aside the failure by the chief electoral officer to register prisoners so as to enable them to vote.” [60]

 

“The applicant was entitled . . . to stand for election in fair and democratic conditions, regardless of whether ultimately he won or lost.” [84]

 

“The focus must be on the impact that this had on their exercise of the right to stand for public office. It is not on whether they would have won or lost had the arrangements for the by-elections been different and not suffered from the flaws of which they complain, but on whether they were seriously hampered in their participation in the electoral process.” [85]

 

“All that can safely be said is that the independent candidates were constrained to fight these by-elections under the shadow of uncertainty occasioned by the registration of an unknown number of voters who were not entitled to vote and an inability to identify who these were or to do anything about it.” [88]

 

“For example, in a national election, the fact that voters, otherwise qualified to vote, are registered in the incorrect voting district, may be of less significance than in a municipal by-election. But late delivery of voters’ rolls, or delivery of rolls with important information missing, may assume even greater significance at the national than the local level.” [90]

 

“These seven by-elections fail that test. They were conducted against the background of fears that voters had been wrongly registered in wards where they were not ordinarily resident and not entitled to vote. It transpired that these fears were well founded. The IEC has proffered no satisfactory explanation for this occurring, seeking instead to shelter behind a contention that it is not obliged to verify voters’ addresses. […] All that can be said is that an election conducted when there is a serious question as to the reliability of the voters’ roll cannot be described as free and fair.” [92]

 

“But it is unnecessary in the light of section 16(3) to reach a firm conclusion on this question and I would hesitate to do so without further enquiry into the electoral systems of other democratic countries and the requirements for the preparation of voters’ rolls there. Here, the IEC was in breach of its obligations under section 16(3) of the Electoral Act in not furnishing segments of the voters’ roll with addresses where those were available.” [94]

 

“Overall the balance must come down on the side of electoral integrity.” [112]

 

“The only other problem mentioned by the IEC is that we are approaching the Christmas holiday period and people may go away. But it rejected that as a ground for postponing the December by-elections in 2013, so it should not be able to rely on it now.” [119]

My message to whites who think Maimane has sold the DA out

Let’s start by accepting that voters are emotional beings*.

Our votes are cast almost exclusively on the basis of emotional drivers: anxiety, fear for some; suspicion and anger, perhaps, for others.

There is no such thing as a rational voter who makes their choice upon the dispassionate assessment of the relative pros and cons of each party.

Second, there is no such thing as a ‘race band-wagon’. Race is a real and pervasive issue in this country. You might feel peeved about it to the point where you buy into the idea that the DA has jumped onto the ‘band-wagon’ but you are in the wrong position to be saying so.

Us whites too easily forget that the momentum of opportunity theft that Apartheid instituted against blacks is still crippling. To make it worse, despite BEE and similar policies, the momentum of white and minority advantage is still very strong. That’s not an opinion it’s a fact: look at income growth by race group since 1994.

earnings_growth
Source: The Economist

The unfortunate reality 20+ years on, is that the structural legacy the evil system bequeathed us is still alive and well.  Black South Africans are largely still poor and short on opportunity, and thus understandably frustrated and angry.

Against this backdrop, incidents of white on black racism are incendiary. I’d go as far as to say that there isn’t such a thing as reverse racism, and that black on white ‘racism’ is more like hatred than racism – because racism as we know it has that special aspect of racial superiority weaved into it. When Sparrow made her comments, she wasn’t just saying ‘I hate you’, she was saying loudly, ‘You are less human than me.’ That’ll make a person furious.

In a country with as much frustration as we have, people need somewhere to direct their outrage – Sparrow et al were good for frustrated blacks, and President Zuma is the old favorite of frustrated whites.

So, Mmusi Maimane is not jumping on any band-wagon. We have a problem in this country that is not being made any better by the gross mis-management of the ANC-led government.

Unfortunately that same problem creates circumstances ripe for blaming all via race on whites (and minorities), and stoking racial tensions for political ends.  Until we face this issue head on, South Africa will not be able to turn the corner and start moving forward again.

Mmusi Maimane is doing what few South African political leaders ever do – he is leading.  He is leading his party, and he is trying to lead South Africans.

We have some way to travel as a nation to get past the drag anchor of race and the impact that it has on the vitality of our democracy.  I have a renewed sense of optimism about our future knowing Maimane is leading us on that journey.

So, you really have two choices as a white voter:

  1. If you are an unrepentant racist, then find a conservative, backwater party like the FF- who will accommodate your views.  They will never get big enough to make a difference, and you will end up on the wrong side of history.
  2. Accept that the only way is forward, confront your feelings and beliefs about race, consider them in the context of you and your children – try to empathise: how would I feel if me or my children were spoken to like that, or how would I feel if I had to live in those conditions every day of my life? Then, cast your vote for a party who you believe will most effectively tackle the challenges that confront our nation.

* This is not opinion either, but solid neuroscience.  The best resource for understanding this better is “The Political Brain” by Drew Westen.

The Slow Creep of Good Government

In the two and a half years since I moved to Cape Town, I feel a great deal safer in the suburbs that I have lived in (Goodwood, Milnerton, Harfield Village, Marina da Gama) than I felt in Durban. The feeling is important – because it is our gut, not the figures in reports, that guide our decisions about this sort of thing.

Of late, we’ve seen a great deal of pessimism about the outlook for the quality of education and services in South Africa – especially with a view to the future one’s own children will live in. The counter-narrative relies on the positive (and hopefully accelerating) change in our political landscape. We’ve seen in the Western Cape, both at a local and a Provincial government level what a positive impact better government can have on quality of life and economic prospects.

Consider for a moment these two articles:

What explains the shift in Venture Capital? Does it have to do with the influx of tech-peoples to the fair cape? Does it have to do with the attraction of living in a well run city (perception or otherwise)? Does it have to do with the Provincial Government’s investment in the tech sector, and infrastructure, and cutting red tape?

An excerpt from the second article:

“It already appears that the Western Cape economy is on a different trajectory to the rest of the country. The region is attracting a great deal of internal migration, which is a clear indication of people seeing economic opportunity.”

Naturally, my own conviction – and the reason that I do what I do – is that government has the greatest influence over the fundamentals underlying society and the economy. Poor government manifests visibly as a shitty public realm, and erodes business confidence and social wellbeing.

I believe that most South Africans have no idea what a good government is. They had a racist, corrupt government in the past. The have a corrupt, inept government now. The scope for the positive impact of even moderately ‘not-bad’ government is massive.

The difference between kak government and good government is getting the basics right. The difference between good government and excellent government – well that’s another story altogether.

To that end, the 2016 Local Government Elections present an interesting set of possibilities:

  • an outright DA win in NMB/PE, or a DA-lead coalition
  • an DA challenge for power in Tshwane, with the ANC almost certain to drop below 50%. It is possible here that the ANC end up in the forties, the DA in the forties and the EFF in the 5-10 range. What an interesting set of coalition possibilities that holds! The first DA-ANC coalition government?
  • a strong DA challenge for power in Johannesburg
  • a possibility of the first DA win in KwaZulu-Natal (Umngeni)
  • the DA winning the rest of municipalities in the Western Cape
  • a test of whether the changes the DA has experienced over the past year will be reflected in a change of perception among black voters

So, much as we are surrounded by the lunacy of our state and its actors on a daily basis – and despair at the society and economy that has resulted – I believe that South Africa’s much vaunted potential is a spring wound tight waiting for sane government to unleash it. If that’s too much for you, then I say it sure as nuts is the case that crappy government is holding the spring down.

That may take some time – but in the meantime, we can hope that the next ANC president will be a force for positive change because surely that organisation knows that it either shapes up or accelerates the date upon which it is shipped out.

Why de Waal’s anti-Zille rhetoric is wrong

I watched with interest last week as Mandy de Waal waged a strange crusade against Democratic Alliance (DA) leader, Helen Zille.

The reason for de Waal’s crusade, to my surprise, was because Zille had written a comprehensive condemnation of white-on-black racism and a call to action for us all to clamp down on it.

In doing so, Zille listed in detail the numerous incidents of heinous behaviour around the country that have been reported with alarming frequency in the media. She made the case that South Africans have a responsibility to shut down the social space white racists thrive in. She cited as “nauseating” those whites who think it is ok to make racist comments by assuming their company all share the same views.

Zille also held no punches in taking on the new “self-appointed” leaders of the far right – Steve Hofmeyr and Dan Roodt – comparing them to the “khaki-clad, gun-toting, horse-riding para-militaries of old”.

Importantly, she drew a line in the sand by bluntly telling the “incorrigible” racists in our society to rather go and find a home with Roodt’s microscopic Front Nasionaal party, because the DA is “disgusted by them”.

So I was surprised then that de Waal chose not to attack the loony bin that is the far-right, and the social misfit aggressors among them, but instead elected to use cherry-picked visuals and flawed data analysis to support her strange and pious crusade against Zille.

What has compelled me to pen an intervention in this matter, is de Waal’s ham-fisted use of statistical demographic data produced by my colleague Adrian Frith prior to his accepting a position in my directorate.

Using census data, he developed maps of the entire country showing the geographical spread of residents by income, language and race.

The maps he produced are actually very useful for assessing current levels of racial integration in our cities, and how this compares to our apartheid past where races were strictly segregated.

Desperate to attack Zille using the approach of the old chestnut of Cape Town being more racist or segregated than anywhere else, de Waal selectively used these maps to make a self-serving point, that is patently incorrect.

Frith was never asked – as the author of the maps – for an interpretation that could have spared de Waal this embarrassment.

Only de Waal alone will know why she chose to manipulate the data to serve her own pious argument.

Her grand conclusion was: “A look at the Johannesburg map and the Cape Town map speaks volumes about integration in the two different cities. The Jozi map shows that previously white neighbourhoods are becoming integrated. The Cape Town map shows that the city is far from integrated.”

But to set the record straight on racial integration in our cities I would like to offer a statistically based overview, as a service to anyone genuinely interested in the truth about this important South African question.

In July 2013, Statistics South Africa (Stats SA) produced a report entitled “Measuring racial segregation at different geographic scales in Cape Town and Johannesburg 1991 – 2011”.

The report found that in both Johannesburg and Cape Town, “residential segregation has decreased between 1991 and 2011” but that, “despite this, segregation remains high in both cities”.

At some geographic scales Johannesburg is more segregated than Cape Town, and at other scales Cape Town is more segregated.

In the end the report found that levels of racial integration are similar in both cities, with neither being particularly more segregated than the other.

Stats SA applied the same method of calculation used by the United States Census Bureau to determine an “entropy score” or “diversity index” for these two South African metros.

To see the bigger picture, my colleagues and I have since calculated the diversity index of all of South Africa’s metros. I am happy to make the working data and codes we used available for the sake of transparency, but will offer a brief explanation of the methodology here (note that the results for Cape Town and Johannesburg we obtained differ slightly from those obtained by Stats SA, because the exact data and calculation approach used by Stats SA are not known).

We calculated a diversity index (or “entropy score”) for the whole municipal area in each metro. If a metro contained 25% Black Africans, 25% Coloureds, 25% Asians and 25% Whites, it would have the maximum possible diversity index. (we ignored those who indicated “other” on the census because we don’t know what that really means.)

If a municipality had a population that was 100% of one race, it would have the minimum possible diversity index.

We divided the municipal area into a regular grid of 4km x 4km squares. This size was chosen because it was the middle of the range of sizes used by Stats SA (Note that the Stats SA paper describes the grid sizes as ranging from one square kilometre to eight square kilometres).

We calculated the diversity index for the population of each square. Then we calculated, for each square, the difference between the whole municipality’s diversity index and that square’s diversity index – so a square more diverse than the municipality as a whole would have a negative difference, and a square less diverse than the municipality as a whole would have a positive difference.

Finally, we multiplied each square’s difference by its total population and summed them up. This sum, when divided by the population of the whole municipality, divided by the municipality’s diversity score, yielded a result between zero and one, with zero being complete integration and one being complete segregation.

We have represented the results of these calculations in a graphic showing the diversity index of South Africa’s cities.

segindex

The actual data is interrogated rather than a biased glance at selected maps as Ms de Waal chose to do, Cape Town and Johannesburg are on pretty much an even keel as far as integration is concerned.

This is supported by the Stats SA report which indicates that in some cases Cape Town is more segregated, and in others Johannesburg is more segregated, but broadly speaking they have very similar figures.

The index places Cape Town second (best) in the country for integration, followed very closely by Johannesburg, and then the rest of the metros with Tshwane and Manguang (worst) showing up about twice as segregated as eThekwini.

It is clear that the challenge of tackling apartheid’s legacy is one that faces all of South Africa’s towns and cities.

The bottom line is that all governments have a duty to drive economic growth and inclusion so that people have more opportunities to improve their lives, and to choose where they live.

I take issue with de Waal abusing mapped data of Cape Town and Johannesburg that was put into the public domain as a service to help people understand the statistical truth of integration in our cities.

All de Waal simply did was deliberately select a part of Cape Town’s map that was less integrated than the part of the map she selected for Johannesburg.

In any case, trying to judge the degree of segregation by just “looking at the maps” is unscientific and highly subject to bias in the viewer – if you expect to see more segregation in one city, you’ll probably see it. This is an abuse of the data and irresponsible journalism. There is no need to use this visual approach when there are actual statistical measures of segregation available.

I have not written this piece to favourably represent one city’s integration over another regardless of the facts. Nor do I seek to trivialise the very serious challenge of integrating our cities, to make any self-serving political arguments; as I believe de Waal has unfortunately done.

However, I do want to make a point about a sector of middle-class hypocrites who use serious issues such as racism, privilege and segregation as cover to serve their own narcissistic agendas.

Only they, it seems, can be the true “anti-racists”, ironically using the privilege of their amplified voices in the media, not in service of the greater good, or of the facts, but for their own self-interest.

60th Anniversary of the Bantu Education Act – South Africa desperately needs quality education

This month, 60 years ago, the Bantu Education Act (full text) was promulgated. This evil piece of legislation has damaged the people and potential of South Africa inestimably. The Act was the brainchild of the Apartheid Minister of Native Affairs, Hendrik Verwoerd. Author Alex Parker wrote the following on Verwoerd and the Bantu Education Act:

“In a crime of lasting and monumental proportions, [Verwoerd] penned and promulgated the 1953 Bantu Education Act. There is no better person than Verwoerd himself to articulate how he felt about the education of black people:

“There is no place for [blacks] in the European community above the level of certain forms of labour,” he declared. “What is the use of teaching the Bantu child mathematics when it cannot use it in practice? That is quite absurd. Education must train people in accordance with their opportunities in life, according to the sphere in which they live.”

Blacks were, as [Verwoerd] put it, destined to be “hewers of wood, and drawers of water”. In a stroke, Verwoerd has stolen the opportunity of a better life from them… [T]he education system he decreed on generations of South African blacks remains, even today, one of the most damaging aspects of his legacy.”

It is against the sort of sentiment expressed above that we should judge the quality of education in South Africa today. If there ever was an opportunity to over-compensate in the measure of corrective action, it would be education in democratic South Africa. Had our governments since 1994 made quality education their number one priority, South Africa would be a fundamentally better country today.

Verwoerd was an evil thief. The man and everyone who supported him, stole the opportunity for a more prosperous life from millions of South Africans.

Imagine, instead, that in 1953 the state had decided to prioritise the education of all South Africans regardless of race. Imagine that the government understood that quality education was the most significant contributor to providing productive human resources to power our economy. Imagine a South Africa today where our education system had been providing quality education for 60 years to all races. Imagine how different our country would be, how much better all of our lives would be.

Every day we waste tolerating an education system crippled by corruption and the stranglehold of unions, we prolong the crime against our people that was committed in 1953.