Nadine Gordimer – Student, writer and activist

By George Bizos SC, assisted by Samantha Brener, both at the Legal Resources Centre.  Delivered in the Great Hall of the University of the Witwatersrand on 18 May 2017

Nadine Gordimer was a world-renowned writer. She has been richly praised by many of the world’s most respected voices.

The independent Newspaper in London published the following – “Gordimer has undoubtedly become one of the World’s Great Writers . . .  Her rootedness in a political time, place and faith has never dimmed her complex gifts as an artist; her partisanship has not compromised her artistic distance.  Great writers can retain political faith; they can believe and create.  This is an important message for all aspirant writers of the next century.

Cecil Abrahams of the Chicago Tribune commenting on “My Son’s Story”, Nadine’s ninth novel, wrote “The novel abounds with the fine turn of phrase, the ironical twist that opens up thought to further exploration, the uncanny ability to enter the varied recesses of the human mind . . .MY SON’S STORY proves that in a changing society such as South Africa, Nadine Gordimer is well placed to portray “the fullness of life”.

The Star-Telegram wrote: “Only very lucky readers are familiar with 1991 Nobel Laureate Gordimer’s work. Join them.”

Margaret Atwood, herself a literary giant, wrote in an obituary for Gordimer “Despite her minute size, she was a huge presence – a voice of rectitude that spoke above the political din, addressing itself to our common humanity…. It’s difficult to imagine the history of the South African novel, indeed of the 20th-century political novel without her”.

Stephen Clingman, says about her “Nadine Gordimer is a most extraordinary observer of her society”.

I am very grateful to Clingman, whose work “The Essential Gesture” provided substantial assistance to me in writing this speech.

Nadine was born in 1923, to immigrant parents in a new place, and her formative years were spent in the mining town of Springs on the East Rand. Her first piece of fiction was published when she was thirteen. Between the time of that first piece and her death, Nadine wrote 15 novels, and a number of short story and essay collections. Her work was translated into at least twenty languages.

During her life, she received the Booker Prize, the Commonwealth Writer’s prize for the Best Book in Africa and, of course, the Nobel Prize for Literature. She was one of only four Wits alumni to have received a Nobel Prize, and of the four, she was the only woman. Karen Lazar wrote about her receipt of the Nobel Prize: “Instead of complying with the custom of being walked down the carpet to receive her award in Stockholm by a member of her government, she chose instead to be accompanied by a literary comrade from her “government-in-waiting”, the ANC’S … Mongane Wally Serote, this being 1991 and transition underway.”

Nadine Gordimer: The Student

Nadine’s time at the University of the Witwatersrand lasted one year only. She registered as an occasional student in English Literature and English Language in 1946. When asked, much later in her life, whether she ever considered doing an undergraduate degree, she dismissed the idea, saying that at 20 years of age, she had already read much more than was on the degree reading list. Although she was a student for only a short period of time, she maintained connections with universities in South Africa, and was closely associated with the National Union of South African Students, a national student body well-known for its opposition to apartheid.

I started my university career in 1948. The vast majority of the students were white, with very few Africans, Indians, Coloureds, Chinese South Africans and a very small number of Africans from neighbouring states. A substantive number had postponed their tertiary education to join the South African Army during the Second World War between 1940 and 1945. We were led to believe it was a war to end all wars. Then the National Party took power in the 1948 general election. The win for the National Party was a huge disappointment for a number of students, including those that had experienced the war, and hated the prejudice that Nazi Germany stood for. There was protest at Wits against the apartheid government. These students were calling for fundamental change.

During a sitting of parliament, Prime Minister Malan was asked about the situation at the university of the Witwatersrand: why black and white students were sitting in the same lecture hall; why white women and black men were walking around campus arm-in-arm? This was contrary to policy! His response was that he had been told by the University that those doing such things were “a small group of leftists”, and that they would be dealt with.

The next day there was a protest meeting at the Great Hall, at Wits University. I was in the front row. I raised my hand and stated unequivocally that if demanding equal treatment with our black fellow students made me a leftist, I was proud to be one. The next day the front page of the Transvaaler read “Linksgesind, en trots daarop. So het George Bizos gese”. This made me popular with most of the students. Nadine congratulated me on the speech.

I was elected four times to the Students Representative Council of the University of the Witwatersrand and represented Wits at the student assembly of the National Union of South African Students in 1953. At the organisation’s congress that same year, NUSAS’s affiliation to the International Union of Students became a controversial issue. Notice had been given that NUSAS should disaffiliate from the international organisation. More than enough votes had been secured that the motion would pass. We were encouraged to support the motion on the basis that the International Union of Students was an instrument of the Soviet Union (among other reasons) and were told that it would be preferable to join a democratic organisation, such as the International Student Conference. I argued that we should not assist those who wanted to create division in the world – between East and West, capitalist and socialist, rich and poor, that we should remain non-aligned and that the International Student Conference was a creation of the CIA. At the time I had no hard evidence to support this. Years later John Didcott, who was by then a judge, told me that it had been exposed in Time magazine that the CIA had formed and financed the International Student Conference. Didcott was appointed a judge of the Natal Provincial Division in 1975 and in 1994 he joined the Constitutional Court bench.

From 1948 onward, there remained anti-government feeling amongst the students. Although I was elected four times to the SRC, I was never an office bearer. The position of head of the SRC was, at the time, taken up by great names such as Philip Tobias, Sydney Brenner, Harold Wolpe, Godfrey Getz and Richard Goldstone.

I remained at Wits for my second degree, and thereafter became a member of the convocation committee. I have always considered myself a Witsie.

Although Nadine remained at Wits for only one year, she regularly attended protest meetings. She and I were friendly through my years of serving on the SRC. We discussed various issues, and she often gave suggestions about how she felt things ought to be done. In later years, she moved into a house that was just walking distance from Wits.

I have wondered to myself whether the treatment of women at Wits at the time may have contributed to Nadine’s estrangement from the University. I recall an incident where a Professor Scholtens told the first year class of law students that, out of a first year class of 45, only a third would be promoted to second year. There were three women in the class. Scholten’s words were “…and if they are women, they might as well give up”. Of the three women, two failed, and the one that passed became a teacher instead of practicing law. Of course, Nadine was not registered for the law class, but it is this kind of approach that she would not have tolerated.

In a similarly interesting story, during my time at law school, we reached that time of year when the law dinner was to be held. The law school did not allow black students to come to the dinner. The usual practice was for the student body to contribute 100 pounds for the guests. This year, 1952, the SRC, of which I was a member, passed a resolution in protest, that the usual 100 pounds would not be given, and that students would be asked not to attend the dinner. We won the round! The black students were allowed to attend, and 8 of them arrived at the dinner. The senior judge was Judge Ramsbottom. Far from being embarrassed by their presence, he had conversations with practically all of them.

There was a law passed in the early 60s, providing that Universities were prohibited from receiving black students unless applicants could prove that they wanted to study something that was not being taught by the newly-established black universities. Students became rather adept at choosing first year subjects that were not taught at these newly-established universities.

Through all of this, Nadine was on the fringe of things. But she nevertheless spent much time discussing what ought to be done in order that equality could be introduced.

Despite never having completed an undergraduate degree, by the time of her death, Nadine Gordimer had accumulated honorary degrees from Yale, Harvard, Columbia, the University of York, the University of Cambridge, University of Leuven in Belgium, and the University of Cape Town, amongst others. She received an honorary doctorate from this university hosting us this evening, the University of the Witwatersrand, in 1984.

Nadine Gordimer: The Writer

Gordimer’s first book was launched in a small bookshop in Pritchard Street. It was on sale for 9 shillings. I could not afford to purchase the book at the time, but I was present at the launch. And she was praised.

One of Nadine’s most important commitments in her life was to the creation of a common community of writers. From early in her career, she befriended the best black writers of the 1950s, most of them based in Sophiatown, writing for periodicals such as Drum. They included Nat Nakasa, Ezekiel Mphahlele, and Can Themba. She was the founder of COSAW – the Congress of South African Writers – a non-racial organisation of anti-apartheid writers.

Often, when these budding young writers found themselves in trouble with the apartheid laws, Nadine sent them to me for their legal defence. I worked on a pro-bono basis defending them. They were often charged with ridiculous things.

I remember one such referral in particular. A young poet had written a sonnet for his lover. In it, he’d said two things. The first ten or twelve lines were a recitation of the terrible things that apartheid had brought to his life. The last two lines – the end of the poem – were an expression of his love for his girlfriend. The poem was found in her home and the poet was arrested. The allegations were bizarre. The man was charged with a criminal offence under the Terrorism Act. The offence carried a 5 year prison sentence. Nadine Gordimer sent the case to me, requesting that I defend the poet in court. I did so, and managed to convince the magistrate that it could not possibly be a criminal offence for a poet to express love for his partner. He had not said anything destructive. The poem was simply an expression of his feelings. As wide as the Terrorism Act was, he surely could not punish a poet for expressing his love? The magistrate acquitted the man, with Nadine sitting at the back of the court room, watching the case.

Nadine’s work as a writer has led to our paths crossing in strange, unexpected ways. One ordinary day Nadine phoned me up. She said “George, I have a guest from the US. She is doing a film of one of Andre Brink’s books.” The book was “A Dry White Season”. The producer had wanted Marlon Brando to play the role of a well-known lawyer defending a young black man charged with a political offence. However Brando had refused to play the role – he had found the script flat, and decided the piece was not for him. The producer came to South Africa, looking for input on improving the part of the lawyer defending political cases, so that she might convince Brando to play the part. Nadine arranged for her to see me, to give input into how a political lawyer might behave. I spent some time answering her questions. Nadine gave much input because she had spent a great deal of time watching me argue in court. We described a specific account to the producer. A young man had made a confession and given evidence against his best friend. Members of his family had told me that the young man had been beaten by the police, and forced to give evidence. While asking the young man questions on the stand, I asked him to turn his back to the audience, and to lift his shirt. His back was covered in half-healed parallel welts. He admitted that the investigating officer had done this damage to his body, as an act of coercion.

This very scene found its way into the film adaptation of “A Dry White Season”. And Marlon Brando accepted the role of the lead lawyer.

Nadine Gordimer: The Activist

The relationship between her writing and her social responsibility was one of the central questions of Nadine’s life. Her involvement in the struggle against apartheid took a number of forms, some of which intertwine with my own story. She often attended political trials. She sat with the public at the back of the court house, watching proceedings unfold. She would discuss the cases with me during breaks. She was making notes, thinking of and remembering things she would later make use of in her written work.

She often assisted me, playing the role of behind-the-scenes editor of crucial pieces of writing and speech during the struggle against apartheid.

In 1963, the ANC leadership were arrested at their headquarters – Lilliesleaf Farm in Rivonia. Walter Sisulu, Govan Mbeki, Ahmed Kathrada, Raymond Mhlaba, Dennis Goldberg, Rusty Bernstein and Bob Hepple were taken into custody by police. Thus began the work of Bram Fisher, Vernon Berrange, Joel Joffe, with Arthur Chaskalson and myself on the defending the Rivonia trialists. In the lead up to the trial, the UN General Assembly had passed a resolution, by one hundred and six votes to one, demanding the abandonment of the Rivonia trial. We decided it was necessary to publicise the resolution both locally and internationally. Similarly, at the time of the trial, we decided it was necessary to promote the international campaign for the release of the detainees by providing personal detail to local and foreign journalists. We had each accused write up autobiographical notes about themselves, about their families, their political beliefs, and their underground work. Nadine Gordimer, by then an established authoress, reviewed and edited these autographical statements. She did a marvellous job. These statements were duplicated and distributed, in the hope that they would assist in dispelling negative perceptions about the accused that had been created by the apartheid-sympathetic press.

Later on in the trial, Nelson Mandela showed us, for the first time, the statement that he intended to make from the dock. His closing words stated that he was ready to die for what he had done. After some discussion between Nelson and the legal team, I proposed that Nelson change the final lines to state that he hoped to live and achieve his ideals, but if needs be was prepared to die. We agreed. Nelson then gave me permission to take a copy of his statement to Nadine Gordimer. At the time, Anthony Sampson, editor of Drum in the 1950s and good friend of Nadine’s, was staying with her. Sampson also knew Nelson well. I asked Sampson to review the statement. He withdrew to Nadine’s study. After an hour and half, he returned, having re-ordered the contents of the statement. He noted that, in order to have maximum impact, it was necessary to move many of the impactful paragraphs to the start, since busy journalists were likely to read the first few pages, and then skip straight to the end of the statement. We took his advice. Both Sampson and Gordimer were most impressed by the statement.

During the 1960s, Nadine Gordimer’s political consciousness was being fully explored in her fiction. She was particularly fascinated by the story of Bram (a shortening of “Abram”) Fischer. When he was brought to trial, she attended proceedings. She wrote two non- fiction pieces about Fischer, and her interest in him persisted and resulted in her seventh novel, Burger’s Daughter. This novel is an excellent example of how personal knowledge can be translated into fiction. The book’s jacket describes Burger’s Daughter as “a brilliantly realised work [in which] Nadine Gordimer unfolds the story of a young woman’s evolving identity in the turbulent political environment that has culminated in present-day South Africa. Her father’s death in prison leaves Rosa Burger alone to explore the intricacies of what it actually means to be Burger’s Daughter…. Nadine Gordimer’s subtle, fastidiously crafted prose sweeps this engrossing narrative to a triumphant conclusion”.

During the latter half of the Rivonia trial, it became clear that the security police had evidence the Bram Fischer was one of the senior leaders of the Communist party, and was actively involved in the underground movement. They did not arrest him at the time. However, on 23 September 1964, Bram Fisher was arrested and charged under the Suppression of Communism Act. I was one of Bram Fischer’s legal counsel in his trial. Following Nelson Mandela’s example in the Rivonia Trial, Fischer chose to make a statement from the dock. We worked on the statement very carefully and in great detail, and included a very important explanation as to why Bram was making a statement from the dock rather than from the witness box. As I had done with crucially important documents before, I asked Nadine Gordimer to review his statement, and she helped contribute to its final form.

My most difficult and unpleasant case was the Delmas trial. In total, the matter ran for more than four years, from August 1985 to November 1989 – we spent four hundred and twenty days in court (excluding time spent arguing appeals of the judgement). Twenty two men had been charged with treason, terrorism and furthering the objectives of unlawful organisations. Ultimately, and with bitter disappointment on our part, five of our clients were convicted. We then had the task of arguing in mitigation of their sentences. One of the people we asked to give evidence in mitigation was, upon my insistence, was Nadine Gordimer. She faced vigorous cross-examination about her political beliefs, but she did not waver. She did not apologise for being a supporter of the policies of the ANC and its armed wing, Umkhonto we Sizwe, as well as of the use of force. She supported economic and other sanctions. She was an active supporter of the United Democratic Front. This testimony showed her absolute fearlessness. On their way home that evening, her then husband, Rienhold Cassirer remarked that it was perhaps wise that she stay at a friend for the night, for fear that the security police would be looking to pick her up. She ignored this advice, and she was not picked up by the security police. It was already the 1980s, the writing was on the wall for the apartheid government, and they were likely concerned about the worldwide protests that would inevitably follow.

When the Nobel Peace Prize was awarded jointly to Nelson Mandela and FW de Klerk, and Nelson decided to accept the shared prize, both Nadine and I were invited to accompany him to Oslo for the award ceremony. Nelson’s daughter, Zenani, was also part of the delegation. Relations between the Mandela delegation and the de Klerk delegation were not at all times absolutely genial. When asked by journalist to comment on the award of the prize to both, Zenani said “my father deserved it”. Things got worse. Nelson had expected that in his acceptance speech, President de Klerk would acknowledge the evils of Apartheid. Instead he said that both sides had made mistakes, which infuriated Mandela. At the Prime Minister’s dinner that evening, Nelson made a scathing attack in response. Later, Pik Botha came up to me and said “please tell your president that from now on my President will speak last. He wants an opportunity to answer the things that your President has said”.

Through her life, Gordimer’s identity and politics were challenged, and shifted as a result. Clingman describes how she struggled with “alienation and belonging in the 1950s, her politicisation in the 1960s, the radical challenge to her identity from the Black Consciousness movement in the 1970s, and a process of reconstruction in the 1980s whereby a new set of inner definition comes to match vastly changed external circumstances”. But, he says, “underlying all Gordimer’s changes, the flexibility of a mind growing stronger and more radical as it [grew] older, [was] the firmness of conviction”.

In 1963, Gordimer initiated her long-standing campaign against censorship, opposing the Publications and Entertainments Act of 1963, which empowered the Publications Control Board to deal with films, plays, objects, magazines and books. In a non-fiction essay on the matter, she speaks angrily about the “principle of mutilation of books through censorship”. She wrote with incredulity of the 102 people who, in terms of the Publications and Entertainments Act, were forbidden from making any communication whatsoever with the public, either through speech or written word.

After the 1963 Act, came the Publications Act of 1974. It was in terms of the piece of legislation that her novel Burger’s Daughter was banned. In June 1979, the novel had been published in England. By the end of June it had been embargoed in South Africa. By 11 July it had been banned by the Censorship committee. After an internal appeal by the Director of Publications, the novel was “unbanned” or “reinstated”. In April 1980, Nadine Gordimer was awarded the CNA Prize (a top literary award) for Burger’s Daughter. Her acceptance speech made her feelings clear. She says, revealing her seething anger at the treatment of her novel, others like it, and the work of apartheid regime more generally:

Censorship is the weapon of information-control, thought-control, idea-control, above all, the control of healthy doubt and questioning, and as such as much a part of the arsenal of apartheid as the hippos [armoured cars] that went through the streets of Soweto in ’76 … Censorship is necessary for the daily maintenance of racism – and the laws of our country are still racist, whatever fancy names we give them; the very changes that are being made to ease the chafing of those laws around the necks of the masses still reflect racist differentiation in the assessment of people’s needs and self-respect, from the comparative amounts spent on black schools and white schools and pensions to the special arrangements that have to be made, on occasions such as this dinner, to have blacks as guests in a white club”.

And later in the speech, she says, with admirable fearlessness:

A cultural counter-establishment is on the move beyond the government’s control, no matter how many writers’ telephones they tap, how many manuscripts are taken away in police raids on black writers’ houses, no matter how many books they ban. The cage is empty. The keepers are beginning to notice; God knows what they will do next. But the writers are singing in the words of Pablo Neruda: This is the song of what is happening and of what will be”

She was not one for mincing words. She hated censorship because her writing was her struggle against racism and injustice. Even less than a year before her death, Gordimer railed against censorship. She wrote publically and critically about the Protection of State Information Bill.

Her old friend, Anthony Sampson wrote of her, just before his death in 2004 “Nadine Gordimer was small and neat, with a bird-like vivacity and intensity. She talked as precisely as she wrote, telling stories dramatically, with acute observation and curiosity. But her sharp intelligence concealed a warmth and involvement that enriched her friends and gave her writing a deep compassion”.

My friendship with Nadine and her husband and children lasted a long time. After the release of Nelson Mandela, Nadine and I visited Nelson together from time to time. We both had things to discuss with Nelson about the future. Later, we visited one another, both at her home and at mine. She and her husband owned a farm, where we would spend Sundays together occasionally.

Nadine Gordimer was concerned about the acknowledgement of the humanity of people, irrespective of whether they were black, white, Jews, Greeks, or any other race, religion or grouping. This was a philosophy that both she and I understood and lived by. We shared this. In her novels, she almost invariably dealt with love affairs crossing colour lines. She wanted her readers to understand the normalcy of this love. This kind of statement was part of her protest against oppression.

The equally legendary South African writer, JM Coetzee said of her:

As a writer and as a human being, Nadine Gordimer responded with exemplary courage and creative energy to the great challenge of her times, the system of apartheid unjustly and heartlessly imposed on the South African people

Gillian Slovo, herself a well-known writer, and daughter of the late Joe Slovo and Ruth First said:

Politics, both large and small-scale, was Nadine’s subject. Speaking the truth was her passion. She wrote about injustices not only in the bad old days, but in the new. She was a model of what an engaged writer can achieve, and that’s what makes her my hero”

 She was a remarkable, courageous role model, and I am honoured to have met, worked with, and befriended Nadine Gordimer.

 Recently there has been a small group of commentators, saying that nothing has changed since the Apartheid years. I was at a graduation ceremony a few months ago. The majority of the graduates were black and the majority of that majority were women. I would like to turn to you Mr Vice Chancellor and ask you, when you hear someone saying that nothing in South Africa has changed, please invite them to the next graduation.

LRC submissions to 60th Ordinary Session of the African Commission

The Legal Resources Centre (LRC) attended the 60th Ordinary Session of the African Commission on Human and Peoples’ Rights (African Commission), held from 8 May 2017 in Niger, as well as the NGO Forum that took place over the preceding weekend.

During the NGO Forum, the LRC and the Kenya Human Rights Commission, on behalf of the International Network of Civil Liberties Organizations (INCLO), hosted a panel on “Surveillance as a threat to privacy rights and doorstep to further violations: A discussion on Africa’s unfolding experiences”. The purpose of the panel was to raise awareness of the case studies and recommendations contained in the report prepared by INCLO members titled “Surveillance and democracy: Chilling tales from around the world”.  A copy of the INCLO report is accessible here (PDF).

While surveillance has a clear and direct impact on the right to privacy, it is well-established that such violations of the right to privacy also impact the enjoyment of other rights, including the rights to freedom of expression, association and assembly, and hinder the work being done by civil society organisations and the media.  Surveillance is therefore a matter of importance that affects all organisations, regardless of the specific focus area of work.

The LRC also delivered a statement (see below) to the African Commission, focusing on specific issues raised by the African Commission in its concluding observations and recommendations following the 2016 review of South Africa’s second periodic report under the African Charter on Human and Peoples’ Rights (African Charter). The concluding observations and recommendations were adopted by the African Commission in June 2016, and a copy is accessible Concluding Observations and Recommendations (PDF).

Building on these concluding observations and recommendations, our statement to the African Commission during the current session dealt with the following three key issues: (i) information rights, in particular the rights to freedom of expression and privacy; (ii) the extractives industry and the environment, as well as corporate accountability more broadly; and (iii) the need for effective remedies for victims of torture.

The South African government also delivered a statement to the African Commission, in which the following issues were highlighted: (i) the right to education; (ii) the plight of women; and (iii) the challenge of migration and the attacks against foreign nationals.

During this statement, Ambassador Ntshinga, delivering the statement, stated that “[h]uman rights remains embedded in our foreign policy”, and that South Africa will “continue to work towards the entrenchment of democracy and the respect for human rights on the African continent through continental and regional bodies”.  Regarding the violent attacks against foreign nationals, Ambassador Ntshinga stated to the African Commission that “[w]e condemn the violence in the strongest possible terms and sincerely apologise to those who were affected”. A copy of the South African Government statement 60th session African Commission is accessible.

Lastly, this session marked the launch of two important legal documents by the African Commission, both of which are important contributions to the work being done on these issues in both regional and domestic contexts:

For more information about the work of the African Commission, visit www.achpr.org.  The next session of the African Commission, scheduled to be held in October/November this year in The Gambia, will celebrate the 30th anniversary of the African Commission coming into existence.

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STATEMENT OF THE LEGAL RESOURCES CENTRE

AT THE 60TH ORDINARY SESSION OF THE AFRICAN COMMISSION ON HUMAN AND PEOPLES’ RIGHTS, HELD IN NIGER

9 MAY 2017 | OBSERVER STATUS NUMBER 376

Honourable Chair, Honourable Commissioners, state representatives, national human rights institutions and fellow NGOs:

Last year, South Africa came before the African Commission on Human and Peoples’ Rights (African Commission) for its review of compliance with its obligations in terms of the African Charter on Human and Peoples’ Rights.  The Legal Resources Centre (LRC) urges the South African government to pay due regard to the concluding observations adopted by the African Commission at its 20th Extraordinary Session during June 2016, to recognise their binding nature and to take concrete steps to implement these recommendations.  In this statement, we wish to highlight three broad areas that arose within these concluding observations: (i) freedom of expression; (ii) the extractives industry and the environment, as well as corporate accountability more broadly; and (iii) the need for effective remedies for victims of torture.

As a point of departure, we recall that one of the concluding observations was to expedite the establishment of the Information Regulator in terms of the Protection of Personal Information Act, 2013.  We note that, since the publication of the concluding observations, the five members of the Information Regulator have now been appointed, and in this regard we wish to extend our sincere congratulations to the Honourable Chairperson, Advocate Tlakula, on her appointment as the head of the Information Regulator in South Africa.  We urge the South African government to provide the Office of the Information Regulator with all necessary support and resources to ensure that it is able to fully establish and operate without delay, and to ensure that it enjoys complete structural and functional independence to be able to undertake its mandate effectively.

Notwithstanding this development, we remain deeply concerned about ongoing surveillance in the country.  There are a number of documented allegations of members of civil society and the media have been placed under surveillance.  This is not only a violation of the right to privacy, but also directly affects the right to freedom of expression, the right to freedom of assembly and the right to freedom of association.  As a matter of first-hand experience, the LRC received a ruling from the Investigatory Powers Tribunal in the United Kingdom in 2015, revealing that an email address associated with the LRC had been subject to unlawful surveillance by the British Government Communications Headquarters.  Surveillance activities such as this will undoubtedly hinder the work of members of civil society and the media, and should be strongly condemned.  We further urge the South African government to fulfil its undertaking to reform the current surveillance framework to ensure that it is constitutionally-compliant.

We are further concerned by the proliferation of draft laws that, if passed into law, would likely have a deeply harmful impact on the right to freedom of expression.  We note, in this regard, the concerns expressed by the African Commission in its concluding observations regarding the Protection of State Information Bill and the Cybercrimes and Cybersecurity Bill, noting in particular the provision permitting journalists and members of the public to be prosecuted for possessing or disclosing state information.  We echo the call made by the African Commission in its concluding observations for the Protection of State Information Bill and the Cybercrimes and Cybersecurity Bill to be brought in line with regional and international standards and best practices.  In a similar vein, as noted by the African Commission in its concluding observations, we remind the government of its undertakings to decriminalise the common law crime of defamation, and urge the government to take steps in fulfilment of these undertakings.

We also take this opportunity to commend the 2017 Joint Declaration by Special Rapporteurs on Fake News, which was a well-timed and important contribution to the discourse, and was of significant value for civil society organisations in seeking to curb efforts by governments to use the so-called fake news rhetoric to unduly restrict the right to freedom of expression.  Across the continent, we see governments clamping down on the right to freedom of expression – particularly freedom of expression online – which affects all members of the public.  We urge the African Commission to continue its important work focusing on freedom of expression online specifically, including the impact that digital surveillance has on the enjoyment of this right.

With regard to the extractives industry and the environment, we note that mining and resource governance remains of serious concern to the LRC and the communities that we assist.  We remind the South African government of the African Commission’s 2012 resolution that emphasised “the disproportionate impact of human rights abuses upon the rural communities in Africa that continue to struggle to assert their customary rights of access and control of various resources”.  We urge the South African government to act with haste in considering and implementing the detailed recommendations contained in the African Commission’s concluding observations in relation to the extractives industry and the environment.

In particular, as we still wait for justice for those Lonmin mineworkers who were tragically killed at the Marikana massacre in 2012, we note the call from the African Commission for the South African government to report on the steps taken to implement the recommendations of the Marikana Commission of Inquiry and to address the underlying factors that precipitated the massacre.  Scant information is known about the efforts being undertaken to fulfil the recommendations of the Marikana Commission of Inquiry, and we urge the South African government to report comprehensively about the investigations undertaken and the consequences thereof.

This raises a broader question of corporate accountability.  In this regard, we note the ongoing work of the Inter-Governmental Working Group of the United Nations to develop a binding treaty for transnational corporations for violations of human rights.  The resolution establishing this working group was co-sponsored by South Africa, and provides an important opportunity for local communities to participate in their own development by ensuring community participation in the drafting of the treaty.  Given the direct impact that this has on Africa, it is imperative that African organisations play an active role in this process, and urge all organisations present to make sure that your voices are heard in this process.

The third issue relates to the lack of measures to provide reparations for victims of torture, which the African Commission urged the South African government to take measures to provide for.  The LRC currently represents a number of persons who allege having been tortured whilst incarcerated at the Mangaung Correctional Centre, a private prison operated by G4S Correction Services.  Our clients allege having suffered an array of violations, including having been electro-shocked, assaulted, forcibly injected and held in solitary confinement for extensive periods of time.  In our pleadings, we contend on behalf of our clients inter alia that this is a violation of their fundamental rights to human dignity, life, freedom and security of the person and of every detained person to conditions of detention consistent with human dignity.  It is self-evidently of significant importance to ensure that victims of acts of torture are able to access appropriate remedies for the violations that they have suffered.  In this regard, we welcome the adoption of the General Comment No. 4 on the Right to Redress for Victims of Torture and Other Cruel, Inhuman or Degrading Punishment or Treatment, and commend all those involved, as General Comment No. 4 provides uniquely useful guidance on this matter.

Moreover, the LRC and our partner organisations in the International Network of Civil Liberties Organizations (INCLO) welcome the adoption and publication of the Guidelines for the Policing of Assemblies by Law Enforcement Officials in Africa.  The LRC notes in particular the forward-looking nature of the Guidelines, and commends the African Commission, the African Policing Civilian Oversight Forum and the Danish Institute for Human Rights for the various participatory processes which led to the finalisation of these Guidelines.  Particularly, we welcome the progressive guidance given to law enforcement officials on the use of force and firearms, including the proper use of less-lethal weapons.

Finally, as a general note, we call on the African Commission to urge the South African government to respect the rule of law, and to respect both the authority and the independence of those institutions mandated to protect the rule of law in South Africa.  The ability of such institutions to function independently is critical to the maintenance of democracy and rule of law in South Africa, and must be fiercely guarded.

[Ends]

 

 

 

What is debt?

This is the second in a series on debt and how it can effect you. The previous post dealt with SA’s junk status and can be read here.

In its broadest sense, the idea of a “debt” refers to an obligation to do something, whether by payment or by the delivery of goods and services, or not to do something.  For the purposes of this series, we will focus only on the obligation to repay money.

South Africans are no strangers to borrowing money.  In 2014, the World Bank Findex reported that a higher percentage of people in South African borrowed money than in any other country in the world.[i]  “Borrowing” could mean borrowing from financial institutions, from friends and family, from stores (buying on credit) and from private informal lenders.  These are all types of debt.

Whatever the case may be, if you have debt, or are thinking of borrowing money, there are some important things you need to consider:

  1. Whether the debt will be secured or unsecured;
  2. What your interest rate will be; and
  3. How many repayments you will be required to make.

In this post we will discuss some of the common types of debt and what makes them different from one another.

Common types of debt

Secured versus unsecured debt

Secured debt is when the person you borrow money from has some sort of claim to your assets if you don’t pay them back.[ii]  Home loans are a good example of secured debt.  On the other hand, unsecured debt is debt without any collateral or security.  A personal loan from a bank is unsecured.  Because secured debt is less risky, lenders will usually offer better interest rates for secured debt compared to unsecured debt.

Home loans

For many people, buying a home or land is the largest financial investment they will make over the course of their lives.  A home loan is a loan given by a financial institution for the purchase of a house. They will give you enough money to buy the house today, if you agree to pay off the loan with interest in small amounts over a number of years.  As it is such a large amount of money, the financial institution will usually require that the loan be secured by a mortgage bond over the property.  This means that your house is the collateral for the loan, and can be seized by the bank if you fail to pay your debt.

What is a mortgage bond?

A mortgage bond is a legal instrument which is registered against the title deed of immovable property.  It gives the bond holder something called a “real right” over your property.  This prevents the owner of the property from selling the property without the permission of the bond holder, and allows the bond holder to sell the property if the owner fails to pay their home loan repayments, as agreed.

A bond comes into being when you sign bond documents with the bank or the bank’s attorneys.  On a practical level, it is a note on the Deeds Office records that someone else has a real right over your property.

Car finance

You can finance your car through a financial institution in one of two ways: an instalment sale agreement, or a lease sale agreement.  In both cases, the bank will own the car until you pay off the loan. Once you have made all the payments on an instalment sale agreement, you become the owner of the car.  In the case of a lease sale agreement, you get the option to buy the car once the agreement has run its course.

You should always be wary of the fact that cars lose value over time.  So, if you buy a car and need to sell it in a year’s time because you can no longer afford the repayments, it is possible that you won’t make enough money from the sale to repay everything you owe.

Personal Loans

A personal loan isn’t secured against anything you own. Unsecured loans are riskier than secured loans because it is less certain that the lender will get their money back if you fail to pay the loan repayments. To cover the risk, the lender will usually require a higher interest rate.  Where you might get a home loan at 2% “above prime”, you could get a personal loan at anything from 5% to 20% above prime. In real monetary terms, that means you are paying a lot more for the debt.

Although it is a riskier form of debt, this does not mean that the lender can’t get their money back.  A lender will still be able to enforce the agreement through the courts and the mechanisms in the National Credit Act 34 of 2005.

Payments by monthly instalments

Think of all of those adverts you see which tell you that you have the choice of paying for a product today, or paying a number of smaller payments over a number of months (TVs, furniture and cell phone contracts). If you choose to pay off the item over a number of months, you will have a contractual obligation to make those payments and, if you default, the store that you bought the item from will be able to take legal action against you for breaching that contractual obligation.  This could involve reclaiming the item, cancelling the contract, and/or claiming damages against you.  You will usually end up spending much more for the product than you would have if you had saved up and bought it cash.

Private informal lenders

Borrowing from informal lenders is common in South Africa.[iii]  Private informal lenders are unregulated and, as such, may charge much higher interest than formal lenders. If you are borrowing informally, make sure that you know what interest will be expected from you.  Be careful of lenders that don’t agree to repayment terms and interest up front, as you could end up repaying many times what you borrowed.

Debt traps

A debt trap is the term used to describe a situation where a person has debt that is extremely difficult or impossible to repay.  One of the ways in which you can fall into a debt trap is when you start borrowing from other institutions, or from informal lenders, to repay the debt you currently have.  It becomes a downward spiral when the new debt is on worse terms (higher interest) than the old debt. The further into debt you get, the closer you get to being blacklisted, declared insolvent and having your assets sold to repay your creditors.

Good debt management

Debt can be a very useful tool for buying assets or financing your dreams, but it can also be a quick way to lose a lot of the things you have worked so hard for.  Being aware of how debt works and how to manage it is crucial if you are going to rely on debt to help you to reach your goals.

When you take out debt, remember that interest is the cost of that debt.  The higher your interest rate, the more you are spending to get debt. The lower your interest, the cheaper your debt – always aim to get the lowest interest rate you can. One of the ways that a financial institution will determine what your interest rate will be, is to consider your credit rating.  When you default on your payments (make late payments or no payment at all), your credit rating goes down. This will make your future debt more expensive and possibly lead to your eventual blacklisting. When you pay your debts according to the terms of your agreement, your credit rating improves. The better your credit rating, the more likely you will be offered better interest rates in future – always try to stick to the terms of your contracts.

In our next part of this series, we will deal with the issue of interest rates and inflation and how this affects debt.

By: Alexander Ashton

Alexandra Ashton is an attorney heading up the LRC Johannesburg debt and housing department. She holds a BCom and an LLB with distinction from Wits University. 

Alex, with thanks to the continued financial support of Legal Aid South Africa, is currently working on assisting people who lost their homes as a result of the fraudulent Brusson Finance lending scheme to be restored ownership of their properties.

Disclaimer: The opinions expressed by the Realising Rights bloggers and those providing comments are theirs alone, and do not reflect the opinions of the Legal Resources Centre. The Legal Resources Centre is not responsible for the accuracy of any of the information supplied by the bloggers.

[i] According to the World Bank, Global Findex Data Bank, (available at: Databank.worldbank.org/data/reports.aspx?source=1228) 85.6% of South Africans had borrowed money in the year leading up to the report compared to the global average of 42%.  See also Demirguc-Kunt et al, “The Global Findex Database 2014: Measuring Financial Inclusion around the World” at page 7 available at: http://www.worldbank.org/en/programs/globalfindex.

[ii] A secured loan is defined in the National Credit Act No.34 of 2005 as “an agreement, irrespective of its form . . . in terms of which a person advances money or grants credit to another, and retains, or receives a pledge to any movable property or other thing of value as security for all amounts due under that agreement”.

[iii] The 2014 World Bank Findex Data Bank recorded that 10.9% of South Africans have borrowed from informal lenders.

How the ratings downgrade affects your debt: a legal perspective

[Featured image sourced from BusinessTech]

As of today, 07 April 2017, both Standard and Poor’s (S&P) and Fitch, two of the three international ratings agencies alongside Moody’s, have downgraded South Africa’s credit rating to sub-investment grade, or “junk status”. There has been a lot of discussion about how this could affect the exchange rate, international investment, taxes and government spending. But how does it affect the average person and what, from a legal standpoint, should you be aware of?

Before we start, it is important to note that there is no need to panic. Economic changes don’t usually happen too drastically, or overnight. Nonetheless, there are things that you should do to prepare yourself so that you are not caught financially off-guard by changes as they happen.

So what can the average person expect? The average person could be affected in five ways: taxes may increase, interest rates may increase, inflation may increase, job security may decrease and returns on your pension, provident and retirement funds will probably decrease. What this boils down to is more pressure on your pocket. That pressure will make it harder to save, invest, and – more critically – make it harder to repay debt and cover your day-to-day expenses. In this post we are going to focus on what happens when you can’t pay back your debt.

First of all, what is debt? Debt is when you have effectively borrowed someone else’s money that you need to pay back. Debt can take a number of forms. Home loans, vehicle finance, credit card debt, personal loans, store cards, cell phone contracts, and instalment sales are all forms of debt. With the pressure of interest rate increases and rising costs of expenses, it becomes harder to make your monthly repayments. If you don’t or can’t pay your monthly instalments, your credit provider can take a number of legal steps against you depending on you contract with them and the nature of the debt.

Ultimately, the law recognises a creditor’s right to be paid for what they have lent you. So if you stop paying, you don’t simply get to walk away without repercussions The law provides a number of ways for creditors to get their money back. Ultimately, each way puts your belongings and, sometimes, your livelihood and home at risk. Common legal routes to recoup unpaid debt are as follows:

  • Bonds over your immovable property (mortgage bonds) allow credit providers to sell off that immovable property to repay themselves. You might have a home loan secured by a mortgage bond over your house for instance.  If you default, the bond would allow the bank to sell your home.
  • Writs of execution allow creditors to sell your movable property (for example your car or furniture), and or your immovable property to pay themselves back.
  • Garnishee orders / emolument attachment orders allow a creditor to deduct money straight off your salary.
  • Orders of insolvency allow creditors to sell off your assets to repay themselves.

Over and above all of this, defaulting means that you run the risk of being black listed. If you are black listed you won’t be able to get credit in future. If you avoid black listing, you may run the risk of having your own personal credit rating downgraded. Just like the S&P downgrade, this will make credit institutions less inclined to lend you money, and if they are willing to lend you money, it will more than likely be at interest higher rates.

So basically, you need to avoid defaulting on your debt.

What you as a consumer and a debt holder can do to avoid default is to first and foremost “know your debt”. In other words, know exactly how much you have borrowed, and exactly how much you have to pay back on a monthly basis.

Secondly, “know your interest rates”. You need to know which of your interest rates are flexible and take steps to understand what an increase in the repo rate will mean for each of your repayments. Most debt is granted on a flexible interest rate. What this means is that if the reserve bank chooses to increase the repo or “prime” lending rate (which is likely to happen following a downgrade) your interest rate will also be increased.

Thirdly, “have a plan to reduce your debt”. Have a plan of how you are going to repay your debt. The best place to start to reduce debt is try to reduce your expenses and to use any extra money you have – after paying off your monthly repayments – to pay off your debt starting with the debt with highest interest rate.

Fourth, “try to avoid more debt”. Particularly avoid debt on medium-sized purchases and purchases you don’t need. That new TV may only cost you “R199 per month!!!” But that is adding to your debt burden, your risk of default, and usually, you will end up paying more for that TV over the long run than you will if you save up and buy it in a lump sum. Yes, this means you may not have as many nice things. But if interest rates increase you will be grateful that you are not drowning in debt.

Fifth, “downsize if necessary”. Do you really need that expensive car, that expensive house, or that fancy cellphone? Think about going simpler, smaller and cheaper. When it comes to debt, every little bit counts.

I hope this basic overview has been helpful. Over the weeks to come, we are going to run a number of articles on our “Realising Rights blog” to unpack the concepts set out in this article with the aim of helping you take control of your debt.

By Alexandra Ashton

Alexandra Ashton is an attorney heading up the LRC Johannesburg’s debt and housing department. She holds a BCom and an LLB with distinction from Wits.

Alex, with thanks to the continued financial support of Legal Aid South Africa, is currently working on assisting people who lost their homes as a result of the fraudulent Brusson Finance lending scheme to be restored with ownership of their properties.

Disclaimer: The opinions expressed by the Realising Rights bloggers and those providing comments are theirs alone, and do not reflect the opinions of the Legal Resources Centre. The Legal Resources Centre is not responsible for the accuracy of any of the information supplied by the bloggers.