Countries at the Crossroads
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Accountability and Public Voice(0 = WORST, 7 = BEST)
Civil Liberties(0 = WORST, 7 = BEST)
Rule of Law(0 = WORST, 7 = BEST)
Anti-Corruption and Transparency(0 = WORST, 7 = BEST)
The ruling African National Congress (ANC) won yet another sweeping victory in South Africa’s 2009 national and provincial elections, the country’s fourth since the advent of democracy in 1994. ANC leader Jacob Zuma was easily elected president by the National Assembly (NA) shortly thereafter. Still, factionalism within the ANC’s coalition has continued to dominate South African politics. Following a bruising leadership battle between Zuma and former president Thabo Mbeki, party rifts emerged anew with the vocal challenge of former ANC Youth League (ANCYL) leader Julius Malema of the Zuma administration’s economic, social, and foreign policies. Once a diehard supporter of Zuma, the populist Malema stoked controversy by calling for the nationalization of mines and a more aggressive approach to land redistribution, as well as calling for regime change in neighboring Botswana and routinely using racially-charged rhetoric. Malema was suspended from the ANC and expelled in 2012 for calling Zuma a “dictator.” Nonetheless, he and his supporters undermined Zuma’s credibility as a populist and exposed a lack of support among both the party’s leadership and its grassroots, opening the door for a succession battle ahead of the ANC’s elective conference in December 2012.
The ANC’s governing alliance with the South African Communist Party (SACP) and the Congress of South African Trade Unions (COSATU)—erstwhile supporters of Zuma in his battle with Mbeki—has also continued to suffer strain. COSATU and its affiliates staged a number of high profile and impactful strikes, including a massive (and occasionally violent) public sector strike in 2010. At the same time, intra-ANC factionalism has (once again) become more prominent in the run up to the ANC’s elective conference in 2012, including unusually vociferous condemnations of Zuma by Youth League leader Julius Malema (Malema was expelled from the party in 2012). The government has also put increasing pressure on the country’s independent media, which has taken the lead in exposing a number of high-profile corruption scandals. While the ANC took the lion’s share of municipal councils in South Africa’s 2011 municipal elections, the relative success of the opposition Democratic Alliance highlighted a growing opposition challenge to the ANC.
The Union of South Africa—including the British colonies of the Cape and Natal and the two Afrikaner republics, Transvaal and Orange Free State—was created in 1910 as a self-governing dominion of the British Empire. All political and most civil rights were limited to South Africa’s minority white population; the majority black population, along with the “colored” (mixed-race) and Asian (primarily Indian) minorities, were effectively disenfranchised. In 1948, the Afrikaner-dominated National Party came to power on a platform of comprehensive, institutionalized racial separation, or “apartheid.” Partly as a result, South Africa declared formal independence in 1961 and withdrew from the British Commonwealth. The National Party governed South Africa under the apartheid system—a new constitution promulgated in 1984 granted limited political power only to coloreds and Asians—until the first nonracial general elections in 1994. Four years earlier, mounting domestic and international pressure prompted then-President F.W. de Klerk to legalize the previously banned ANC and Pan-African Congress and release ANC leader Nelson Mandela from prison. The interceding years saw almost all apartheid-related legislation abolished and an interim, democratic constitution negotiated and enacted.
The April 1994 elections—judged free and fair by international observers despite significant political violence—resulted in a landslide victory for the ANC and the election of Nelson Mandela as president. As required by the interim constitution, a national unity government was formed, including the ANC, the NP, and the Zulu-nationalist Inkatha Freedom Party (IFP). Negotiations within a Constitutional Assembly produced a permanent constitution that was signed into law by Mandela in December 1996. In 1999, general elections saw the ANC claim almost two-thirds of the national vote; Thabo Mbeki, Mandela’s successor as head of the ANC, won the presidency. The ANC won an even more sweeping victory in 2004, capturing nearly 70 percent of the national vote and outright control of seven of the country’s nine provinces (while sharing power in the other two). All polls—including those in 2009—were declared free and fair by a slew of domestic and international observers.
After decades of minority white rule, South Africa emerged as a parliamentary democracy under the 1996 Constitution of the Republic of South Africa. National authority is shared by the executive and legislature and checked by an independent judiciary; executive and legislative powers also exist on the provincial and municipal levels. Extensive political rights are guaranteed by the constitution and widely respected in practice. The constitution provides for universal adult suffrage, a national common voter roll, regular elections contested by multiple parties and determined by a proportionally representative system, and the establishment of an Independent Electoral Commission (IEC) and an Electoral Court. In addition, a constitutionally incorporated Bill of Rights assures South African citizens of the rights to form and campaign for a political party, stand for public office, and participate in free, fair, and periodic elections.
These rights and institutions are widely respected in practice. National and provincial elections in April 2009 were judged free and fair by both credible domestic observers (led by the South African Civil Society Election Coalition [SACSEC]) and observers from SADC and the AU. According to the Electoral Institute of Southern Africa (EISA), high turnout and the ability of voters to cast ballots in any station in their province led to ballot shortages throughout the country. The ANC’s 65.9 percent of the national vote earned the ruling party 264 seats in the 400-seat NA; the DA, with 16.7 percent of the vote, won 67 seats, while COPE (7.4 percent) won 30 seats and the IFP (4.6 percent) only 18. Nine other parties won four or fewer seats in parliament. Overall, eleven parties ran lists in the national and all nine provincial elections. While parties were generally able to campaign in areas around the country, political violence was more of a problem than in 2004. According to the Mail & Guardian, there were 40 incidents of electoral violence in 2009, most “at the level of intimidation or clashes” in KwaZulu-Natal (KZN) and the Eastern Cape.
The run-up to municipal elections in May 2011 saw a record number of voters—23,654, 578—register with the IEC, a 2 percent increase from 2009, while the election’s 58 percent turnout was the highest for any of South Africa’s three municipal contests. Unlike national and provincial elections, 50 percent of seats on each municipal council are elected via first-past-the-post, single member ward elections; the remaining 50 percent are allocated via proportional representation. In 2011, the ANC won 62 percent of the vote, followed by the DA with just under 24 percent of the vote. While the DA won outright control of Cape Town and 11 of 24 municipalities in the Western Cape, the ANC won the vast majority of municipalities in every other province. The IFP won just over 3.5 percent of the vote, and COPE took just over 2 percent. Subsequently, the ANC investigated scores of alleged irregularities (in all nine provinces) concerning the make-up of its party lists, whereby local party members alleged the list committees had removed popular members. According to the Institute for Democracy in South Africa (IDASA), there were numerous incidents of reported vote buying during the elections, particularly in KZN and the Eastern Cape. 
While public funding of political parties through the Represented Political Parties’ Fund is governed by the IEC and subject to auditing and public disclosure, private contributions to political parties—which make up the overwhelming majority of funds—are totally unregulated. Parties do not have to reveal the make-up of their contributor pool nor the size of corporate or individual contributions. This system has elicited criticism from both elected officials and civil society as a major source of political corruption. Legal proceedings initiated by IDASA under the 2000 Promotion of Access to Information Act—which aimed to force parties to reveal the identities, amounts, and dates of all private donors to the parties since 1994—have been repeatedly dismissed. The ANC in particular has been criticized for awarding state tenders and contracts to firms associated with Chancellor House, the party’s in-house investment firm. In April 2010, the Japanese firm Hitachi Power—in which Chancellor House holds a 25 percent stake—won a contract to supply boilers for the state utility Eskom’s new Mdeupi power station. While the ANC announced plans to divest itself, it has not done so.
South Africa’s constitution mandates a robust system of checks and balances amongst the executive, legislative, and judicial branches of government. Executive power is held by a legislatively-elected president, who serves as head of state; the president’s appointed cabinet consists of the deputy president, 34 ministers and 22 deputy ministers. The national legislature, including the National Assembly and the 90-seat National Council of Provinces (NCOP), has significant oversight and approval powers vis-à-vis the executive, and legislators can question members of the executive in session. Every executive or legislative act is subject to review and scrutiny by the judiciary, headed by the Constitutional Court and the Supreme Court of Appeals.
In practice, however, the ANC’s overwhelming control of the executive and the legislature (at both the national and provincial levels) undermines South Africa’s institutional checks and inter-branch accountability. Parliamentary committees charged with overseeing executive ministries are often led by ANC loyalists and have been accused of approving ministerial reports and budgets without sufficient debate. The parliament has also been criticized for failing to adequately investigate executive corruption and maladministration. In 2009, an independent panel commissioned by parliament recommended that members of parliament (MPs): more actively scrutinize executive reports; ensure parliamentary queries are fully answered by the executive; and disallow presiding officers from holding high office in political parties, among many other recommendations. By year’s end 2011, no significant efforts have been made to implement the recommendations. The judiciary has demonstrated significant independence in hearing constitutional challenges to legislation and in prosecuting abuses of power. Nevertheless, political interference, resource shortages, and the lack of an effective oversight body for judicial conduct hamper the courts’ oversight powers (see Rule of Law below for more details).
The Public Service Act (PSA) provides for a civil service in which posts must be filled on the basis of “equality and other democratic values and principles enshrined in the Constitution.” However, merit and open competition are often subordinated to (ANC) political affiliation and nepotism, as well as to considerations of race, gender, and disability included in the PSA to redress “imbalances of the past” and ensure a public service “broadly representative of the South African people.” Higher-level civil service appointments, in particular, are often filled via the “deployment” of ANC cadres. According to the state-mandated Public Service Commission (PSC), only about half of civil service jobs are filled according to the requirements of the PSA.
Thousands of civic groups and non-governmental organizations operate freely throughout South Africa, including a vibrant and politically active trade union movement led by COSATU. Most of these civil society organizations (CSOs) deal with education, good governance, land reform, and housing/service delivery. CSOs regularly testify before and submit presentations to legislative committees regarding pending legislation. While close relationships with the ANC and the government have discouraged some CSOs from pursuing public advocacy campaigns aimed at affecting legislation, others have been vociferous in this regard. Registration of CSOs is relatively straightforward, and organizations are not required to disclose their funding sources to the government.
Freedoms of expression and of the press are protected in the constitution and generally respected in practice, and South Africa has vibrant press freedom advocacy and journalists’ organizations. The constitution also protects the right of access to information, and the Promotion of Access to Information Act 2002 puts this practice into effect. Nevertheless, several apartheid-era laws and the 2004 Law on Antiterrorism permit authorities to restrict reporting on security forces, prisons, and mental institutions, while more recent legislation further restricts the scope of permissible reporting in South Africa. The 2009 Film and Publications Amendment Act requires any publisher not recognized by the press ombudsman to submit a wide range of potentially “pornographic” or “violence-inciting” materials to a government board for approval, a mandate widely criticized by press freedom advocates as a means of prepublication censorship. In November 2011, the National Assembly passed the Protection of Information Bill despite vociferous opposition from private media outlets, most opposition parties, and a raft of CSOs. The bill allows state agencies to classify a wide range of information—including “all matters relating to the advancement of the public good” and “the survival and security of the state”—as in the “national interest” and thus subject to significant restrictions on publication and disclosure. It mandates prison terms of 3 to 25 years for violations and does not allow a “public interest” defense. It will become law in 2012 after almost certain approval by the NCOP.
Libel is not criminalized in South Africa, but civil cases, sometimes involving large fines, are occasionally brought against members of the press. In December 2010, President Zuma announced a $700,000 lawsuit against Sunday Times cartoonist Jonathan Shapiro for defamation over a controversial 2008 political cartoon. While journalists are rarely arrested or detained by state authorities, they are subject to less formal pressure from both state and non-state actors. For example, critical journalists have repeatedly been accused of racism or betraying the state by government and ANC officials. Since 2007, the ANC has been considering legislation to establish a statutory media tribunal, replacing the self-regulating Press Council and Press Ombudsman with a state-run body empowered to hear complaints against the press, hand out stiff punishments for violating privacy and for defamation, and force the media to issue retractions and apologies.
For primarily socioeconomic reasons, most South Africans receive the news via radio and television outlets, most of which are controlled by the South African Broadcasting Corporation (SABC). While officially editorially independent, the SABC has come under fire for displaying a pro-ANC bias, for reflecting internal ANC rifts in its management struggles, for financial mismanagement, and for practicing self-censorship—including banning critical commentators from its airwaves. The SABC’s three stations claim most of the television market, but the country’s two commercial television stations, e.tv and M-Net, are reaching growing proportions of the population. International broadcasts are unrestricted. The Independent Communications Authority of South Africa (ICASA) is involved in efforts to expand the number and broadcasting range of community radio stations. However, the process is slowed by lack of bandwidth and bureaucratic delays. In 2011, the Zuma government announced a R1million (approximately $120,000) advertising budget to be spent at newspapers which “assist the government in getting its message across.” The government’s media advertising operations were also consolidated within the ministry of communication. New Age, a new daily newspaper launched in late 2010, is owned by interests with close ties to Zuma and has been explicitly endorsed by the government as a “supportive” publication.
Internet access is unrestricted, although state monitoring of telecommunications systems is authorized. Access costs and language barriers remain prohibitive for many South Africans and 12.5 percent of the population had regular internet access during 2011. More people can access the internet from their phones than from computers.
The constitution and the Bill of Rights provide South Africans with a comprehensive set of civil liberties, and these rights are generally enjoyed in practice. Non-derogable rights in the Bill of Rights include equality, human dignity, life, freedom from torture and inhuman and cruel treatment, freedom from slavery and servitude, freedom from child abuse, and a series of procedural rights for arrested, detained, and accused persons.
The South Africa Police Service (SAPS) is under the civilian control of the Department of Safety and Security and is primarily responsible for maintaining internal security and law and order. Despite constitutional prohibitions, there were reports of torture and the use of excessive force by SAPS members during interrogation, arrest, and detention. Recent years have seen an increase in extrajudicial killings by police (and vigilante) civilians after the Zuma administration granted security forces more latitude to use deadly force against criminals ahead of the 2010 FIFA World Cup. South Africans may report alleged rights violations by the SAPS to the Independent Complaints Directorate (ICD). Between April 2010 and March 2011, the ICD received 5,869 complaints of abuses, including deaths in police custody (797), criminal offences (2,493), and general misconduct (2,477). Including a backlog of over 2,500 cases from 2009-10, the ICD fully investigated 82 percent of death cases, 83 percent of criminal cases, and 92 percent of misconduct cases, resulting in 30 criminal convictions for deaths in custody and 29 for other criminal cases—all of which represent marked increases over previous years.
Police are badly underpaid, and corruption in the SAPS is a significant problem. Such corruption is rarely reported: according to Global Integrity, only about 6 percent of criminal complaints to the ICD were related to corruption. Nonetheless, high-level police officials have been successfully prosecuted for corruption and criminal conduct. For example, in July 2010, former police commissioner Jackie Selebi was sentenced to 15 years in prison for accepting a large bribe from an organized crime boss and Ekurhuleni metro Police Chief Robert McBride was sentenced to five years in prison for drunk driving and “defeating the ends of justice” in September 2011.
South Africa has one of the highest violent-crime rates in the world. In 2011, however, rates of murder (31.9 per 100,000), attempted murder (31 per 100,000), assault (397.3 per 100,000), carjacking (21.3 per 100,000), and various forms of robbery all declined significantly from previous years. At the same time, rape and sexual assault rates increased (see below). The country’s high crime rates, along with concerns about police capabilities, have fueled regular incidents of vigilantism and a burgeoning private-security industry. The government hired and trained an additional 40,000 police officers in advance of the World Cup, most of who remained on the job to bolster the undermanned police force. Civic groups and opposition parties have routinely accused the government of doctoring crime statistics and of failing to release sufficiently up-to-date statistics to the public.
Prison conditions often do not meet domestic or international standards. According to the International Centre for Prison Studies, in 2011 the country’s 241 prisons suffered from overcrowding that reached 133.2 percent of capacity (157,375 prisoners held in space meant to accommodate 118,154). There were reports of prisoners being physically and sexually abused by both fellow prisoners and prison employees. In 2006, a government commission of inquiry found corruption, maladministration, and sexual violence to be rife in the penal system. Over 40 percent of inmates are infected with HIV, and health services, while improving, are inadequate. In recent years, the Department of Correctional Services (DCS) has begun training corrections officials to better combat sexual abuse and the spread of HIV. Excessive pre-trial detention and negligent conditions for pre-trial detainees are major problems: while most prisoners wait an average of 3 months before trial, some must wait up to 2 years. At year’s end 2011, about 30 percent of the prison population had yet to be sentenced.
Political opponents and activists are generally free from violent harassment by the state. In October 2009, however, a group of 30-40 people attacked a political camp organized by the housing rights NGO Abahlali baseMjondolo (ABM) in the informal Kennedy Road settlement near Durban, leading to the death of two residents and the destruction of 30 informal dwellings over two days. Over 1,000 residents fled the settlement during the violence, which was allegedly initiated by local ANC activists with a pro-Zulu ethnic agenda. ABM also alleged local police were complicit in the attack. In July 2011, legal proceedings against 12 members of ABM arrested during the violence for murder (related to the two deaths) were dropped for lack of evidence.
Gender equity is provided for in the constitution, which prohibits both state and private discrimination on the basis of “gender, sex, pregnancy [or] marital status,” and imbues the state with a positive duty to prevent discrimination via national legislation—a duty that has been confirmed by the Constitutional Court. While the constitution allows the option and practice of customary law, it—along with the Recognition of Customary Marriages Act of 1998—does not allow such law to supersede the constitutional rights assured to women as South African citizens. Nevertheless, women suffer de facto discrimination with regard to issues surrounding marriage, divorce, inheritance, and property rights. For example, rural women are often prevented from acquiring land under the 2004 Communal Land Rights Act, which transferred effective control of communal lands to traditional councils. Women are also subject to sexual harassment and wage discrimination in the workplace, and make up only 19 percent of top management positions. However, women do hold 45 percent of seats in NA and 42 percent of executive ministries or deputy ministries. Women also lead five of nine provincial governments; Helen Zille, the premier of Western Cape Province, is also the leader of the opposition DA party.
Domestic violence and rape, both criminal offenses, are serious problems. South Africa has one of the world’s highest rates of sexual abuse. The country’s high rate of HIV infection, as well as various traditional beliefs that HIV and lesbianism can be “cured” by sexual intercourse (the former via sex with a female virgin), makes incidents of rape particularly worrisome. Despite the government’s operation of women’s shelters and sexual offenses courts, reporting and investigating of these crimes are hampered by a lack of resources and societal attitudes. The 2007 Sexual Offenses Act extended the act of rape to include the victimization of men and boys and codified the offences of rape and sexual violence. Still, a 2009 study by the Medical Research council found that one in four South African men admit to raping at least one woman, while a 2010 survey by the South African Medical Research Council found that over 37 percent of men in Gauteng admitted to rape. More than 56,000 women reported having been raped from March 2010 to March 2011, with many more cases going unreported.
No law specifically prohibits trafficking in women (or any person), and South Africa serves as a destination, source, and transit point for trafficked women. However, the government has prosecuted traffickers—mostly in sexual offense courts—under a number of existing laws and has cooperated with NGOs engaged in the issue.
As with gender discrimination, the constitution prohibits discrimination based on “race…ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.” State entities such as the South African Human Rights Commission (SAHRC) and the Office of the Public Prosecutor (OPP) are empowered to investigate and, with respect to the OPP, prosecute violations of anti-discrimination laws. Citing the legacy of the apartheid system, a significant amount of legislation has been passed mandating affirmative action for previously disadvantaged groups (defined as “Africans” “Coloureds,” and “Asians”) in both public and private employment and education. However, racial imbalances in the workforce persist. According to the 2011 Department of Labor Employment Equity Report, blacks (Africans and Coloureds) accounted for 17.3 percent of top management, 24.6 percent of senior management, 41.4 percent of middle management positions, and 64 percent of skilled labor positions despite representing 84.6 percent of the country’s economically active population. The government has also focused policy (with very mixed results) on reforming inequities in housing, health care, and land ownership. The nomadic Khoikhoi and Khomani San peoples, indigenous to South Africa, suffer from social discrimination.
South Africa has one of the world’s most liberal legal environments for homosexuals. The 2006 Civil Unions Act legalized same-sex marriage, and a 2002 Constitutional Court ruling held that homosexual couples should be allowed to adopt children. Nevertheless, homosexuals are routinely subject to physical attacks, including an increase in instances of so-called “corrective rape,” whereby lesbians are raped by men seeking to “fix” their sexual orientation. Discrimination against disabled people is prohibited by the constitution and monitored by the Office on the Status of Disabled People. However, the SAHRC reports that ‘there is urgent need to redress violation of disability rights,” especially for children.
The number of foreign nationals in South Africa is contested, with estimates ranging from two to seven million, including between one and three million Zimbabweans. Increased illegal immigration has led to a rise in xenophobic violence by police and vigilantes, including a wave of attacks in May 2008 that killed 62 suspected foreigners (21 were in fact South African) and temporarily displaced some 80,000 others. Sporadic attacks continued in 2009, 2010, and 2011. Immigration and police forces have been accused of abusing illegal immigrants and detaining them longer than allowed under the Immigration Act, particularly at the Musina refugee center. In March 2011, parliament passed the Immigration Amendment Bill, which reduces the period asylum seekers have to make formal application at refuge reception centers after entering the country from 14 days to 5 days, along with other restrictions. In October 2011, the government resumed deportations of Zimbabwean migrants, halted in 2009. According to the International Organization of Migration, only 275,000 of an estimated 1.5 million Zimbabweans had applied to have their status regularized through the government’s Zimbabwe Documentation Process (ZDP), of which half only received permits to remain in South Africa. In July 2011, the African Peer Review Mechanism (APRM) gave South Africa the lowest possible rating for its handling of xenophobia in the country.
Freedom of religion is constitutionally guaranteed and actively protected by the government in practice. By law, there is no official state religion, though the majority of South Africans are Christians. The state is not involved in the appointment of religious leaders or the internal workings of religious organizations; in fact, the government does not require religious groups to be licensed or registered. While the government allows public schools to include general “religious education” in age-appropriate curricula, it is not required; preaching the tenets of a specific faith (“religious instruction”) is not permitted in public schools. 
Freedom of association and peaceful assembly (i.e., to demonstrate, picket, and present petitions) is secured by the Bill of Rights, and South Africa features a vibrant civil society (see Accountability and Public Voice). Protests and demonstrations are common and generally peaceful. However, an increasing number of protests over service delivery have turned violent—from 38 percent in 2008 to 59 percent in 2011— and the police have used force to disperse them. In April 2011, a man in Ficksburg in the Free State was killed after police beat him during a violent service delivery protest; two officers were later charged with murder and four with assault.
South Africans are free to form, join, and participate in independent trade unions. Labor rights under the 1995 Labor Relations Act are respected, and more than 250 trade unions exist. COSATU—which claims over two million affiliate members—is part of a tripartite governing alliance with the ANC and the SACP. Strike activity is common. In 2010, approximately 1.3 million public-sector workers—including many teachers and health workers—staged an occasionally violent three-week strike over pay and housing allowances. In 2011, a series of large strikes by workers in the metals, engineering, chemical, and energy sectors resulted in widespread petrol shortages for at least half the month. National Union of Metalworkers SA workers won a 10 percent wage increase, while counterparts in the chemical, paper, and pulp industries won wage increases between 8.5 and 0 percent.
The independence of the South African judiciary is guaranteed by the constitution. While the courts have operated with substantial autonomy in the post-apartheid era, they have been exposed to increased political interference in recent years. The chief justice and deputy chief justice of the Constitutional Court (CC) are appointed by the president after consultation with the Judicial Service Commission (JSC) and the leaders of parties represented in the National Assembly; the president appoints the judges to the CC and other courts—including the Supreme Court of Appeals—on the advice of the JSC. Constitutionally, the “racial and gender composition of South Africa” must be considered in the selection of judges. Judges may only be removed from office by impeachment by the National Assembly. In 2009, President Zuma appointed five judges to the CC to fill vacancies left by retiring judges; opposition parties and legal organizations generally welcomed the appointments. By contrast, Zuma’s appointment of one of these new judges—Judge Mogoeng Mogoeng—as chief justice in September 2011 was opposed by a slew of legal advocacy groups and opposition parties, as well by as COSATU. Mogoeng is an ordained minister who has expressed controversial opinions concerning homosexuality and rape.
The prosecution of corruption charges against ANC president Zuma—originally brought in 2005, and again in 2007—for his role in an “arms deal” corruption scandal exposed the judiciary (and national prosecutors) to numerous attempts at political interference. In April 2009, head national prosecutor Mokotedi Mpshe dropped the charges against Zuma on the grounds that the timing of the 2007 charges was motivated by political interference with the NPA. In September 2011, a CC challenge calling for an independent inquiry into the relevant arms contracts prompted the government to announce it was re-opening an official inquiry into the scandal.
The government generally complies with judicial decisions, and instances of non-compliance are attributable mostly to lack of capacity and efficiency rather than to willful disregard. The 2011 State Liability Amendment Bill currently before the NA might make judicial enforcement more difficult by disallowing the attachment of state assets or property to satisfy unpaid debts by the state.
Criminal defendants are presumed innocent until proven guilty, and the constitution provides for a litany of procedural rights—including the right to a fair, public trial conducted before “an ordinary court…without unreasonable delay,” the right of appeal to a higher court, and the right to independent legal counsel (accused persons unable to afford such counsel have the right to an assigned, state-funded legal practitioner “if substantial injustice would otherwise result”). In practice, staff and resource shortages sometimes undermine South Africans’ (particularly poor South Africans’) rights to a timely trial and state-funded legal counsel and restrict their abilities to bring legal suits. Rural citizens also have a more difficult time gaining physical access to civil courts. Still, in 2010, the state-backed Legal Aid Board was able to take on 93 percent of referred cases.
The National Prosecuting Authority (NPA), South Africa’s centralized prosecuting authority, is ensured de jure independence by the constitution and the National Prosecuting Authority Act of 1998. The presidential-appointed National Director of Public Prosecutions (NDPP) is the head of the NPA, reports to parliament, and is accountable to the Minister of Justice. The independence of the NPA and the NDPP have been repeatedly compromised. In October 2008, the Directorate of Special Operations (DSO)—a unit of the NPA known as the “Scorpions” focused on investigating organized crime and corruption—was dissolved by parliament and incorporated into the SAPS as a new unit, the Directorate for Priority Crimes Investigation (DPCI, or the “Hawks”). The dissolution followed a resolution to that effect at the ANC’s national conference in 2007 and the condemnation of the Scorpions’ methods in the investigation of Jacob Zuma, among other high-profile figures. Also in 2008, Vusi Pikoli was dismissed as NDPP (at least in part) for authorizing an arrest warrant for police commissioner Jackie Selebi (see below), despite the fact that an official committee of inquiry cleared him of wrongdoing in office. In 2010, Zuma appointed former Justice Ministry director general Menzi Simelane to head the NPA, a move that was condemned by many opposition parties and civil society groups who alleged Simelane lacked qualifications and that he played an unlawful role in Pikoli’s dismissal.
The South African National Defense Force (SANDF) is under effective civilian control. Under the constitution, the president is commander-in-chief of the force, which is overseen by the Department of Defense (headed by a civilian defense minister) and subject to significant parliamentary oversight—most notably by the Joint Standing Committee on Defense and the Portfolio Committee on Defense. A defense secretariat within the Department of Defense is headed by a civilian secretary and includes the chief of the SANDF, who has executive military command of the armed forces. Tasked mostly with maintaining external security, the SANDF also has some domestic obligations. Military personnel generally respect human rights, and soldiers are exposed to human rights training programs; however, there have been reports of abuses. Military personnel have been accused of abusing and bribing migrants on Southern Africa’s northern border. The weapons manufacturer Denel is wholly controlled by the government.
The protection of property rights is a subject of much controversy in post-apartheid South Africa, the consequence of tensions between maintaining the rule of law, promoting economic growth, and remedying the country’s gross inequities in land ownership—the most enduring legacy of colonial and apartheid rule. The state generally protects citizens from arbitrary deprivation of their property. Section 25 of the 1996 constitution states that “no one may be deprived of property except in terms of law of general application,” which allows for property to be expropriated for a public purpose or in the public interest, subject to negotiated or court-mandated compensation according to market principles. Notably, the “public interest” includes “the nation's commitment to land reform, and to reforms to bring about equitable access to all South Africa's natural resources; and property is not limited to land,” and the constitution stipulates that South Africans affected by past racially discriminatory laws are entitled to restitution, redress (including redistribution), or secured land tenure rights.
Despite being supported by a series of legislative acts and much political rhetoric, South Africa’s land reform program has proceeded slowly. The government has vowed to transfer 30 percent of land from white to black owners by 2014; in 2011, however, the Department of Land Affairs reported that only 8 percent of land had been so transferred. The government has repeatedly aired the possibility of swapping its “willing buyer, willing seller” policy in favor of a more expedient approach, but has yet to do so officially, in part because about 90 percent of the redistributed farms had failed or were failing, according to the Ministry for Land Reform and Rural Development.
A majority of the country’s business assets are white-owned, including 66 percent of shares on the Johannesburg Stock Exchange (blacks own 28 percent). Successive ANC administrations have attempted to “transform” this reality by implementing a Black Economic Empowerment (BEE) program which aims to bring about “significant increases in the numbers of black people that manage, own and control the country’s economy, as well as significant decreases in income inequalities.”[45 The state’s official definition of “black” includes African, coloured, Indian, and—as of June 2008—Chinese South Africans. The BEE program requires private-sector firms to meet a range of affirmative-action requirements—concerning ownership, management control, employment equity, skills development, preferential procurement, enterprise development, and socio-economic development—in order to gain access to licenses, government tenders, and sales of state-owned enterprises. The program has been strongly criticized—including by senior government officials—for concentrating resources in the hands of a few, politically connected recipients. The total value of BEE deals decreased from R73-billion in 2008 to R27-billion in 2010.
South Africa features a wide-ranging anticorruption framework, with several agencies and special bodies claiming a legal mandate to prevent, detect, and combat corruption amongst public officials. However, enforcement of these laws and related sanctions is a major problem. Petty corruption is a regular part of South Africans’ interactions with state authorities and the awarding of state contracts is heavily politicized, both trends that have worsened in recent years. South Africa was ranked 64 out of 183 countries surveyed in Transparency International’s 2011 Corruption Perceptions Index.
Chapter 9 of the constitution established three so-called Chapter 9 Institutions that deal with corruption: the Office of the Auditor-General of South Africa (AGSA), the Public Protector, and the Independent Election Commission (IEC; see Accountability and Public Voice).
The Office of the AGSA (headed by Auditor-General Terence Nombembe) is South Africa’s supreme audit institution and is responsible for auditing and reporting to the National Assembly on the accounts, financial statements, and financial management of any agency receiving public monies. These reports are accessible to the public free of charge. AGSA’s independence is constitutionally guaranteed (and fortified by the Public Audit Act of 2004), and the body can initiate its own investigations. However, incomplete reporting by public agencies, particularly at the provincial and municipal levels, hampers the institution’s efforts, as does the lack of an explicit obligation for agencies to act on AGSA resolutions.
The Public Protector (PP) is the national ombudsman and is empowered to investigate maladministration, abuse of power, and other forms of improper conduct in the public administration. Citizens may report a matter directly to the PP. In addition, a public protector is appointed in every province. While the past PP Leonard Mushwana, a former ANC MP, was accused of inhibiting investigations of senior ANC members and the party itself, current PP Thulisile Madonsela (also a former ANC official) has enjoyed wide support from opposition parties and civic groups. Because the PP does not often initiate its own investigations and cannot impose penalties, its effectiveness is limited. While high staff turnover and financial constraints negatively impacted its ability to fulfill its mandate, the PP improved its case turnaround time in both 2010 and 2011. As with the AGSA, the public can access the PP’s reports promptly and free of charge.
Outside of the Chapter 9 institutions, several other agencies and legislative instruments contribute to South Africa’s anticorruption efforts—with varying degrees of success. The 2004 Prevention and Combating of Corrupt Activities Act mandates that corruption exceeding a certain money threshold be reported to the SAPS for criminal investigation. Within the executive and legislative branches of government, the separation of public office from personal interests is superficially achieved by the Executive Members Ethics Act, the Code of Conduct for Assembly and Permanent Council Members, and the deliberations of the Joint Committee on Ethics and Members Interests, respectively. However, while these mechanisms mandate that relevant officials disclose private financial assets and interests, the extent of disclosures are inconsistent amongst the national, provincial, and local governments, and none have legitimate oversight or enforcement mechanisms. Moreover—and despite numerous ANC party resolutions to address the issue—none have adequate post-employment restrictions, exacerbating the clear presence of a “revolving door” between government and business. Notably, while both executive and legislative officials’ financial disclosures can be audited by the AG and the PP, they are rarely done so in practice (though audit of parliamentarians are relatively more common). Similarly, while these disclosures are legally available to the public, those of executive officials—particularly the president—are substantially more difficult to access. After significant public pressure, President Zuma disclosed his financial interests over nine months after taking office, more than six months past the 60-day deadline.
Between 2006 and 2009, current president Zuma was three times charged with corruption and cleared of those charges on procedural grounds. More recently, executive and legislative officers have been involved in a number of corruption scandals. In 2011, Leonard Chuene, head of Athletics SA, was fired after being found guilty of financial misconduct, including misappropriation of funds and tax evasion, while Sheryl Cwele, wife of intelligence minister Siyabonga Cwele, was convicted to 12 years in prison for drug smuggling. The PP called for corruption proceedings against current police chief Bheki Cele and Public Works Minister Gwen Mahlangu-Nkabinde for leasing police buildings at inflated prices, as well as against Cooperative Governance and Traditional Affairs minister Sicelo Shiceka for abusing public funds after spending more than US$120,000 on travel for himself, friends, and staff members. As discussed above, in December former police commissioner Jackie Selebi began a 15-year prison sentence for accepting a large bribe from an organized crime boss. Also in 2011, the government released the long-awaited Donen report, detailing findings of corruption by top ANC and government officials (including potential Zuma rivals Tokyo Sexwale and Kgalema Motlanthe) related to the UN oil-for-food program in Iraq; previous attempts to access the report by media and civic groups had been denied.
As mentioned above, the civil service is also plagued by problems of financial disclosure, post-employment restrictions, and enforcement of anti-corruption mandates. The Public Service Commission (PSC) oversees the Department of Public Service and Administration (DPSA) and is responsible for monitoring and evaluating the public sector, including cases of public corruption. The Public Service Regulations (2001) require senior public officials and members of the PSC to submit disclosure forms; however, adherence to the regulations is not only weak, but has worsened over time, and sanctions for failing to submit the requisite forms are virtually non-existent. Civil servants convicted of corruption are not banned from future government work, and the civil service has no restrictions on post-public service employment. Furthermore, corruption—particularly the exchange of small bribes—is a significant problem in the civil service. The Department of Home Affairs—among the most heavily bureaucratized ministries in the government—is widely considered the most corrupt government ministry, with bribes regularly used to gain preferential access to official documentation and to avoid deportation. In 2011, the central government—citing maladministration and corruption in provincial expenditures—took over a number of provincial government agencies in Limpopo, Gauteng, and Free State. Most strikingly, Limpopo overspent its budget by more than US$250 million and exhausted its approximately US$92.6 million overdraft facility. A subsequent audit revealed over US$3.2 billion in unauthorized payments and more than US$1.2 million of contracts awarded without public bidding.
The Protected Disclosures Act protects whistleblowers from various forms of retribution and recrimination; in practice, however, whistleblowers—whose identity is not protected by the act—are rarely protected from occupational detriment and other negative consequences. Moreover, internal mechanisms for acting on reports of corruption are unclear, ineffective, and inconsistent across provinces and municipalities. The PSC and the DPSA Anti-Corruption Unit administer a national hotline for civil servants to report instances of corruption within their ranks. While the hotline has received thousands of allegations since in opened in 2004, only a few hundred cases have been closed. In a high-profile case of alleged whistle-blower retribution, Jimmy Mohlala, a member of the Nelspruit local organizing committee for the 2010 World Cup, was shot dead after accusing colleagues of corruption in awarding tenders for the construction of the Mbombela stadium; no charges in the case have been brought.
Chapter 10 of the constitution states “transparency [in public administration] must be fostered by providing the public with timely, accessible and accurate information.” In addition, Section 32 of the constitution’s Bill of Rights (Chapter 2) grants “everyone” the right of access to “any information held by the state” (with exceptions such as national security), and mandates that national legislation be enacted to this effect. This legislation, the 2000 Promotion of Access to Information Act (PAIA) and the 2002 Amendment Act, guarantees citizens’ access to government information. However, enforcement of the Acts suffers from a tedious application process and slow (if any) responses to requests, and explanations for request denials are rare. Most public agencies do not report on requests for information or compliance with those requests. A 2010 joint survey by the SAHRC and the Open Democracy Advice Center (ODAC) at IDASA found that only 31 percent of public institutions (at all three tiers of government) responded to PAIA requests. In addition, the 2011 Protection of Information Bill—which gives the government a wider berth to classify information for reasons of national security—may further preclude public access to official information (see Accountability and Public Voice).
The executive dominates the budget-making process, though legislative approval is required. The 2009 Money Bills Amendment Procedure and Related Matters Act formally enables parliament to amend the budget, while the Division of Revenues Act requires NA approval for transfers within and across the three tiers of government. The Standing Committee on Public Accounts (SCOPA), parliament’s primary public funds oversight body, lacks independence and clear enforcement mechanisms. However, parliament’s Finance and Budget Joint Committees are more assertive vis-à-vis the executive. The 1999 Public Finance Management Act (PFMA) and the 2003 Municipal Finance Management Act provide for a substantial degree of transparency in the use of national, provincial, and local government funds; both acts mandate regular expenditure reports from departments and public enterprises to treasuries and the annual submission of audited financial statements to parliament. In addition, the budget debate process is open to the general public, including civic organizations and journalists. South African scored a 92 out of 100 in the 2010 Open Budget Index published by the International Budget Project. Accurate and timely information on regular budgets and expenditures is easily available to the public.
The government controls eight state-owned enterprises (SOEs) and monopolizes transportation (Transnet) and electricity provision (Eskom). All SOEs report to the Department of Public Enterprises, which is overseen by parliament’s Portfolio Committee on Public Enterprises. In addition, Eskom must report to the Energy Committee, Transnet and SAA to the Transport Committee, and Safcol to the Agriculture Committee, and both SCOPA and the AGSA review SOE financials. While these various oversight bodies are well funded, they are rife with political interference and do not regularly initiate investigations of or impose penalties on officials suspected of corruption. Still, the Portfolio Committee on Public Enterprises has successfully investigated and ameliorated overspending at South African Airways, beginning in 2010. Financial records of SOEs are openly available to the public.
Controversies surrounding public procurement and the awarding of government contracts have dominated headlines in recent years. Most notable is the 1999 $4.8 billion Strategic Defense Procurement Package (i.e., the “arms deal”) and the resultant slew of corruption charges against current President Zuma (see above). By law, procurement processes require competitive bidding and limited sole sourcing, and are generally transparent. A number of laws require officials to disclose potential conflicts of interests, and the 2003 Supply Chain Management Framework devolved procurement responsibilities to accounting officers in government departments and away from the centralized State Tenders Board. The 2004 Prevention and Combating of Corruption Activities Act—passed in the wake of the arms deal scandal—established clearer definitions of illegal corruption and extortion, reinstated the common law criminality of bribery, extended the presumption of prima facie evidence to facilitate prosecution, and expanded the scope of the law to include all public officials and private citizens. The act also established a Register of Tender Defaulters that excludes persons (including companies) convicted of corruption from government business for set periods of time, a change that has been largely effective. By contrast, the “various regulations aimed at governing conflicts of interest in the public sector and procurement processes have been established, but their enforcement remains uneven, unsatisfactory and/or inactive.” The general public can easily access public procurement announcements and regulations.
A major legal exception to competitive bidding is the 2003 Black Economic Empowerment Act, which gives companies with black owners or greater percentages of black owners priority in the awarding of government tenders (see Rule of Law).
The South African Revenue Service (SARS) is a well-funded, highly professional body with an excellent record of fair and wide enforcement of tax laws and the collection of excise and customs duties. Two 2009 amendments to the Taxation Laws Act further enhanced the ability of SARS to ensure compliance with the country’s tax laws. The government gives foreign assistance to neighboring Zimbabwe and contributes dues to the South African Development Council (SADC) and the African Union (AU). These funds are distributed in accordance with South African law.
The South African media has reported aggressively on a litany of corruption scandals, and allegations of corruption in general are given wide airing, particularly in print media (see Accountability and Public Voice). Recently, the government has taken steps to restrict this coverage, including the passage of the Protection of Information Bill and the continued consideration of a statutory media tribunal. The SABC has banned some prominent critics of government corruption from their airwaves and are systematically less likely to cover stories of economic mismanagement and maladministration than the independent media outlets.
- The ANC should be required to demonstrate that Chancellor House was divested from Hitachi Power. More broadly, legislation prohibiting the future involvement of political party affiliated corporate entities in public sector tenders and contracts should be pursued.
- The Press Freedom Commission headed by former Chief Justice Pious Langa is a credible, responsible and broad-based representative of independent media outlets in South Africa. As such, the government should abandon efforts to establish a statutory media council—which has greatly weakened media independence in neighboring countries like Zimbabwe and Botswana—and instead work out a compromise with the commission to establish a more empowered, self-regulating Press Council.
- As recommended by a number of academic researchers and gender rights activists, the government should support comprehensive sexual assault prevention programs aimed at South African youth, both at the secondary school level and at the community level. Girls aged 12-17 are reported to be the most vulnerable to sexual assault, while boys in this age range are reported to be the most vulnerable to become sexual criminals.
- Efforts to reform the “willing buyer, willing seller” approach to land reform should be conducted in consultation with all major stakeholders, including Agri-SA, as all parties acknowledge the need for reform and a more equitable solution. More opaque processes and aggressive political rhetoric heighten adversarial attitudes and increase the likelihood of violence without improving the chances for more successful policy in the agricultural sector.
- Central government interventions in provincial departments should be closely targeted at improving financial governance and reducing corruption and nepotism in civil service appointments. If successful, these interventions should use a model for both provincial and national-level administrations, which suffer from maladministration, particularly the Department of Home Affairs.
- Restrictions on post-public service employment in the private sector must be introduced and enforced, either as amendments to the Executive Members Ethics Act, Code of Conduct for Assembly and Permanent Council Members, and Public Service Regulations Act, or as new pieces of legislation.
 Citizens aged 18 or over, including prisoners. The Electoral Act was amended in 2004 to allow for government officials, students, and citizens traveling abroad to vote in South African elections. In 2009, a Constitutional Court upheld a Pretoria High Court ruling that the Act’s exclusion of citizens living abroad was unconstitutional. As a result, citizens abroad that registered to vote were allowed to do so in the 2009 and 2011 elections.
 “Threats and Killings: Just Another SA Election,” Mail & Guardian, April 1, 2009, http://www.mg.co.za/article/2009-04-01-threats-and-killings-just-another....
 “ANC Probe of Lists Starts in Western Cape,” News24, March 14, 2012, http://www.news24.com/SouthAfrica/Politics/ANC-probe-of-lists-starts-in-...
 This represents a significantly expanded cabinet under the Zuma administration, which added a Minister in the Presidency responsible for a new National Planning Commission (NPC); split up both the Department of Mining and Energy and the Department of Education into two departments, respectively; created the Department of Rural Development and Land Affairs, the Department of Economic Development, the Department of Tourism, and the Department of Women, Youth, Children, and People with Disability, each headed by a minister.
 The NCOP consists of 10 members from each province, 6 “permanent delegates” appointed by the provincial legislature to five-year terms and 4 “special delegates” appointed by the legislature in consultation with the premier on a temporary basis
 Feinberg book.
 The Speaker and Deputy Speaker of the National Assembly and the Chairperson of the NCOP.
 Report of the Independent Panel Assessment of Parliament (Cape Town, South Africa: Parliament of the Republic of South Africa, January 2009), 13. http://www.parliament.gov.za/content/The%20Panel%20for%20Assessment%20of...
 Public Service Act, 1994. http://www.dcs.gov.za/Homepage_Paia/Documents/Legislation/PublicServiceA...
 Public Service Commission, “Assessment of the State of Human Resource Management in the Public Service”, March 2010. http://www.psc.gov.za/documents/2010/PSC_March_2010_Review.pdf
 The Constitutional Court accepted a multi-party legal challenge to the law in November 2011
 “Editors slam government advertising scheme,”Mail & Guardian, June 10, 2011.
 In May 2011, President Zuma signed into law the Independent Police Investigative Directorate (IPID) Bill, which will convert the ICD into a new agency (IPID) with greater enforcement and oversight powers vis-à-vis the SAPS. The law will be implemented in 2012.
 Global Integrity Report: South Africa (Washington, D.C.: The Center for Public Integrity, 2010), Indicator No. 84c
 South African Police Service (SAPS). Crime Statistics (Pretoria: SAPS March 2011) http://www.saps.gov.za/statistics/reports/crimestats/2011/categories.htm
 Judicial Commission of Inquiry into Alleged Incidents of Corruption, Maladministration, Violence, or Intimidation in the Dept. of Correctional Facilities (Jali Commission, 2006)
 For example, the DCS invited the international NGO Just Detention International (JDI) to conduct such a training program at Pollsmoor prison. See: http://www.justdetention.org/en/factsheets/SouthAfricaFactsheet.pdf
 “Attackers Associated with ANC,” News24, September 28, 2009, http://www.news24.com/SouthAfrica/News/Attackers-associated-with-ANC-20090928.
 Rabkin, Franny, “Academics Condemn Attack on Settlement,” Business Day, September 29, 2009, http://www.businessday.co.za/articles/Content.aspx?id=82548
 Constitution of the Republic of South Africa 1996, Chapter II (9)
 An Overview of Women's Rights in African Customary Law (Johannesburg, South Africa: Legal Resources Centre, Women’s Rights Project, 2004), http://www.lrc.org.za/Publications/AcademicPapers.asp
 Mail & Guardian 18 June 2009 ‘Quarter of Men in South Africa Admit Rape,’ http://www.mg.co.za/article/2009-06-18-quarter-of-men-in-south-africa-ad...
 Constitution of the Republic of South Africa 1996, Chapter II (9)
 South African Human Rights Commission. Human Rights Development Report 2011 (Pretoria, South Africa: SAHRC 2011). http://www.sahrc.org.za/home/21/files/SAHRC%20Annual%20Report%20Intro.pdf
 “South Africa: ‘Harsher Regime’ for Asylum Seekers,” Irin November 29, 2011, http://www.irinnews.org/Report/94337/SOUTH-AFRICA-Harsher-regime-for-asy...
 National Policy on Religion and Education. http://www.info.gov.za/view/DownloadFileAction?id=70211
 Jain, H. 2010. “Community Protests in South Africa: Trends, Analysis and Explanations,” Local Government Working Paper Series No. 1, Community Law Center (South Africa).
 Constitution of the Republic of South Africa 1996, Chapter VIII (177)
 Two weeks before the national and provincial elections.
 Global Integrity Report: South Africa.
 Constitution of the Republic of South Africa 1996, Chapter II (35)
 Global Integrity Report: South Africa, Indicator No. 82d
 “The Desperate Bid to Shield Selebi,” Mail & Guardian, October 5, 2007,
 Constitution of the Republic of South Africa 1996, Chapter II (25)
 “Who Owns What By Race,” Mail & Guardian, December 9, 2011, http://mg.co.za/article/2011-12-09-who-owns-what-by-race/
 South Africa’s Economic Transformation: A Strategy for Broad Based Economic Empowerment http://bee.thedti.gov.za/docs/Strategy%20for%20Broad-Based%20Black%20Eco...
 Global Integrity Report: South Africa, Indicator No. 59
 Public Protector Act, No.23 of 1994
 Global Integrity Report: South Africa, Indicator No.56
 Since the dissolution of the DSO, such investigations are carried out by the Hawks (see above)
 It should be noted that provincial arrangements for some post-employment restrictions are in place in Guateng and the Western Cape.
 Global Integrity Report: South Africa, Indicator No.46g
 Global Integrity Report: South Africa, Indicator No. 49a.
 Ibid., Indicator No. 68a.
 Open Budget Index, 2010, The International Budget Project, Washington DC. http://www.internationalbudget.org/files/OBI2010-SouthAfrica.pdf
 Global Integrity Report: South Africa, Indicator No. 68a.
 Ibid, Indicator No. 51c
 Rosenberg, Mark, “Present at the Creation: A Theory of Founding Party Dominance,” (PhD dissertation, UC Berkeley).