Nobody is above (everyone is equal)

Nobody is above (everyone is equal)

Nobody is above the law
everyone is equal before

the much-lampooned man
has done whatever he can

Nobody is above the law
everyone is equal before

there are those ones
who give you the runs
(election-time they comes)

Nobody is above 
everyone is equal

an emperor-ex will serve
that which many more do deserve

Nobody is above the law
everyone is equal before

Miscreants and dictators plunder
tearing their countries asunder
(each according to their ability)

Orwell’s Animal Farm rings true 
but will it do for you 


SAFM radio’s afternoon show ends with a Ray Charles’ rendition of “Let it be”.

(By David Kapp)

(Image Credit: Sandile Goje, Making Democracy Work / Constitutional Court Art Collection)

In South Africa, women assert the Constitutional right to breathe fresh air is a State responsibility

Promise Mabilo

Section 24a of the Constitution of the Republic of South Africa declares, “Everyone has the right to an environment that is not harmful to their health or well-being.” Everyone means, or should mean, everyone. For decades, coal mining and coal-fired power plants have turned the Mpumalanga Highveld into the site of the most polluted air in the world. Two years ago, Greenpeace reported that the area was the world’s largest power plant emission hotspot. In 2007, the South African government created the Highveld Priority Area to respond to the deadly situation. Nothing changed. If anything, the air became more deadly. This year, women in Mpumalanga, most of them members of the Vukani Environmental Justice Movement in Action, decided enough was already way too much, and, with another environmental justice organization, groundWork, sued the South African government. The women declared they knew what was happening to their children, neighbors, community, and to themselves, and they said that they had pushed every other way conceivable and now, it was time for the South African government to abide by its Constitution. Everyone has the right to an environment that is not harmful to their health or well-being. Everyone means everyone. The case is known as the “Deadly Air” case. In May, the Pretoria High Court heard the case, and the decision could come out any day.

After the case was heard, Promise Mabilo, coordinator of Vukani Environmental Justice Movement in Action and one of the claimants, explained, “For me, this case is very important because people around the Highveld are really suffering. I have a son who is suffering from asthma and I feel the pain when I look at him. His childhood had limitations because he couldn’t play with other children, run around or carry heavy objects. I also noticed his school performance dropping because he wasn’t attending school regularly as he would be sick for one week then be okay the next …. The more I see the results of breathing in this polluted air and the people I live with in the community who are also sick and suffering from asthma, I feel abused and violated because I know what the cause is … We wish for the government departments to work together with other departments, such as the Department of Health. We do not just want compliance from the polluters because once we get sick, we even struggle to get proper healthcare because we don’t have money.”

Mbali Vosmang added, “I live with my  two children. Princess is seven, and Asemahle is three years old. When they were born, they were not sick but since living Emalahleni, we have become sick. It is very tough to sleep in hospitals due to COVID-19. The beds are full, and our children are put on oxygen tanks from the bench. The Deadly Air case is very important because I do not want others to continue to suffer the same issues as we do.”

When the government tried to explain that cleaning up an area takes time and that the claimants, majority women, were being emotional rather than rational, their attorney, Steven Budlender, responded, “The Constitutional Court has spoken with great force and passion about the need to … make a difference in ordinary people’s lives, and when you speak about 10 000  deaths of predominantly poor people in an area, that’s not emotional, it’s not irrational. It is the fact and the facts give rise to a constitutional violation.”

The facts give rise to a constitutional violation. The women of the Mpumalanga Highveld know the cause of the rampaging death in their communities. It is the air and it is the refusal of the State to care sufficiently. A state that can save its airline industry and its tourist industry is able to address the deadly air, produced by mines and power plants, in its rural areas. In Mpumalanga, in the northeast of South Africa, the women want the world to know, everyone has the right to an environment that is not harmful to their health or well-being. The women want the world to know, everyone means everyone.

(By Dan Moshenberg)

(Photo Credit: Daily Maverick / Daylin Paul / Life After Coal)

In South Africa, elderly rural women take a patriarchal King to court … and win!

Linah Nkosi

In South Africa in 1990, Sizani Ngubane co-founded the Rural Women’s Movement, a coalition of over 500 community-based organizations and a membership of over 50,000 indigenous women and girls. Until her untimely death at the end of last year, Sizani Ngubane, as Director of the Rural Women’s Movement, challenged traditional leaders’ misogyny, sexism, authoritarianism, patriarchy. In the last decades, she focused much of her work on KwaZulu-Natal, and especially on the Ingonyama Trust, a trust with only one trustee. At the time of Sizani Ngubane’s death, that trustee was King Goodwill Zwelithini. He alone controlled close to 30 percent of the land in KZN. Around five million people, about 50% of KZN, live on land the Ingonyama Trust controls. For years, the Ingonyama Trust ran roughshod over local landowners who actually had title, under traditional law, to the land. The Trust was especially vicious and dismissive of traditional women landowners. Last year, some of those women, along with the Rural Women’s Movement, took the Ingonyama Trust to court. This past Friday, the Court decided in the women’s favor. The court decided the Trust must repay the stolen money and land. This is a monumental victory for women, democracy, justice, and a demonstration that a person may die but the spirit lives on. Long live Sizani Ngubane!

In 2018, Sizani Ngubane described the Ingonyama Trust: “The Ingonyama Trust was established to secure the 2.8 million hectares of land in KwaZulu-Natal for white people, who were not sure if the ANC led government would accommodate them after the colonial and apartheid regimes took 87% of the South African land from the indigenous communities …. The Ingonyama Trust’s actions concerning land have been terrible for the communities who reside on land designated as the Trust land … The Trust invites people to bring in their Permission to Occupy (PTO) certificates and other documentary proof of land rights in order to convert them into lease agreements, whose annual rentals escalate by 10%. A PTO Certificate is an apartheid-era land right that is upgradeable to ownership in terms of the Upgrading of Land Tenure Rights Act 112 of 1991. Not everyone has PTO Certificates because under the apartheid regime the issuing of these certificates was only for men. Nevertheless, anyone who has established long-term occupation of land is likely to have customary ownership, especially in instances where the inheritance of the land occurred over generations. The Trust’s standard lease agreement turns the indigenous and/or rural communities from owners into tenants of the Trust, binding them to pay rent that escalates at 10% a year. If one defaults on the rent, one stands to lose the land, including any buildings and improvements one, or one’s family, made on the land.”

Linah Nkosi, 64, lives on a pension. She has a plot of land that’s about seven acres. Linah Nkosi and her sister acquired that land years ago, through the local traditional council. The Ingonyama Trust decided all landholders needed leases. When Linah Nkosi came to sign hers, the Trust rejected her because she’s a woman. The Trust told her to get a man to cosign. Linah Nkosi protested … to no avail. She returned with her male partner, and he signed. Linah Nkosi continued to protest and then, with others, went to court.

Margaret Rawlings, 65, Thembekile Zondi, 62, Hluphekile Mabuyakhulu, 75,and other women tell similar stories. Margaret Rawlings has a title deed that goes back to 1926, and yet traditional leaders and the Ingonyama Trust seized parts of her property, and when she protested, guns went off. Thembekile Zondi was married to a local traditional leader. When he died, a new leader was installed, and he promptly evicted Thembekile Zondi and her daughters from the house that Zondi and her husband had built. To this day, Zondi and her daughters “feel like refugees who have been forced to flee from their own home and watch the usurpers enjoying the fruits of our hard work.” At a community meeting, Hluphekile Mabuyakhulu was told to sign the lease or lose her land and become homeless. 

The women who were badgered, dismissed, threatened, injured, stolen from said “NO”. They said the Constitution, justice, decency, the rule of law, and women matter. On Friday, the Court agreed. The Legal Resources Centre, who represented the women in the case commented: “For the seven individuals, this fight is personal. The group comprises of single mothers, factory workers, pensioners, farmers and fathers trying to provide for their families. For many, their ascendents worked the land on which they are now being forced to pay rent. They have – along with the other 5.2 million residents of the Ingonyama Trust land – built their homes and their lives on this land. The applicants represent these 5.2 million South Africans and the threat that this matter poses to their security of tenure on this land.”

This fight is personal, for the seven individuals who took the Ingonyama Trust to court, as it is for everyone everywhere. Around the world, people face eviction from their homes, homes which they built, under all sorts of pretenses. Pandemic billionaires rake in untold wealth and avoid paying taxes, while the majority of the world population suffers economic crisis. Historically racist, sexist and economically discriminatory housing policies continue to build today’s Americas, Europe, Asia, Australia, as well as South Africa. Industrial capital was founded on pushing people off their land and then criminalizing them. Post-industrial capital continues to rely on the disenfranchisement and mass eviction of rural populations, especially women. No one, no one man, no one group of men, should control 30 percent of anything, but they continue to do so. That must come to an end. Friday’s judgement was a personal and a global victory. Long live Sizani Ngubane!

(By Dan Moshenberg)

(Photo Credit: New Frame)

You move too slow

You move too slow

You move too slow
I get to hear
from a greyhead
behind me

not in the pecking order
not at the feeding trough
but in a shopping queue

You move too slow
clipping my heels
as she veers 
to the right

to another queue
where the grass is greener
and there is more
on offer

You move too slow
the over 60s are urged 
(on evening etv news)
not to rush to centres 
for their vaccine shots

so I am just
practising my slowness
my lack of speed
or slothfulness even

amused once was I
to hear two queueing locals
pondering which service
was the more slothful
(we won’t say which)

You move too slow
could be said to be

The state we are in

(By David Kapp)

(Photo Credit: Health-e News / NW Health Department)

There isn’t a school

There isn’t a school

There isn’t a school
for protesting 

but there is
for police
and policing

There isn’t a school
for protesting or
for protesters

to learn the trade
to learn the skills

but there is
for police
and policing

There isn’t a school
Though we have 
plenty of schools

(who is schooled
who is educated)

There isn’t a school

When might there be

An afternoon SAFM radio presenter ponders the killing of a passer-by “caught in the cross-fire” by the country’s police in the Wits student protests, 11 March 2021, in South Africa’s Human Rights Month.

By David Kapp

(Photo Credit: News24 / AFP / Emmanuel Croset)

Landmark case: In South Africa, five sisters said NO! to the exclusion of women … and won!

Constitutional Court

This is the story of Trudene Forword, Annelie Jordaan, Elna Slabber, Kalene Roux and Surina Serfontein, five women who refused to be denied their birthright, and In so doing affirmed, once again, that justice means justice for everyone. The story begins in 1902, in Oudtshoorn, in the Klein Karoo, in the Western Cape. Oudtshoorn is known for ostrich farms. Maybe now it will also be known as yet another cradle of democracy and justice for all. On November 28, 1902, Karel Johannes Cornelius de Jager and his wife, Catherine Dorothea de Jager formally signed their will, leaving some of their farms to their children, with one stipulation. The farms would pass from their children only to male generations until the third generation. But what if, at some point, the only direct descendants are women? Last month, South Africa’s Constitutional Court ruled on that question. 

In 1957, brothers Kalvyn, Cornelius and John de Jager inherited the property. John de Jager never had sons, and so when he died, his property was split between his two remaining brothers, Kalvyn and Cornelius. When Cornelius died, his sons – Albertus, Frederick, and Arnoldus – inherited his half share in the farms. In 2015, Kalvyn de Jager died. He had no sons, and he had five daughters: Trudene Forword, Annelie Jordaan, Elna Slabber, Kalene Roux and Surina Serfontein. Their male cousins claimed the property, noting that while the situation may smack of “unfair discrimination”, the law was the law, and a will was a will. The sisters didn’t buy that argument and went to court. Both the High Court and the Supreme Court of Appeals decided in favor of the male cousins. The sisters persisted and went to the Constitutional Court, the court of last resort, in this instance. Last month, the Constitutional Court decided in the sisters’ favor.

Acting Justice Margaret Victor explained, “The provisions of the preamble to the Equality Act make its nature and intended purpose clear. The consolidation of democracy requires the eradication of inequalities, especially those that are systemic in nature and which were generated in South Africa’s history by colonialism, apartheid and patriarchy. Inheritance laws sustain and legitimise the unequal distribution of wealth in societies thus enabling a handful of powerful families to remain economically privileged while the rest remain systematically deprived. In my view, this system entrenches inherited wealth along the male line. In applying this critique to the facts in this case our common law principle of freedom of testation is continuing to entrench a skewed gender bias in favour of men.”

The consolidation of democracy requires the eradication of inequalities, especially those that are systemic in nature and which were generated in history by colonialism, apartheid and patriarchy. What else is there to say?

By Dan Moshenberg

(Photo Credit: GroundUp / Ashraf Hendricks)

Say it out loud

Say it out loud
(Gender-Based-Violence)

Irked is he
at the acronym
saying it hides
the word violence

Connected to jazz
is Nigel Vermaas
on evening Bush Radio
the 16 Days Campaign
at its end

Say it out loud
Gender-Based-Violence
don’t hide it
don’t let it hide

Behind an acronym
Behind a committee
Behind closed doors
Behind a veil a cloak
Behind a pandemic

Woman got a right to be
follows the little opinion
a Caiphus Semenya song
he finds fitting

He said it out loud

Bush Radio’s Nigel Vermaas puts his foot down on evening community radio.

By David Kapp

(Photo Credit: Design Indaba)

ASHES TO ASHES

Kwanele

ASHES TO ASHES 

A fly sits on a woman’s lip
she spits and swears

a priest in black and white 
raises his hands 
“Ashes to ashes may our holy god give 
your bleeding hearts peace…” 

Plastic petals
red and white 
rain on the wood 
covering your flesh
dead leaves falling 

Your mother throws soil
dust falls
her tears follow the motion 
wind scatters them 
before reaching ground
mourners swallow 
march behind her in procession  
footprints embroider 
the path from your grave

I stay and read the headstone, 
“Nomaphelo, 1973-1992, 
we will remember you always
beloved daughter”

Walking from where you sleep

I remember your legend: 
the day the gods made you 
they carved and carved 
once happy they called a heavens’ Imbizo   
the heavens came 
breathed life into you and next day 
you opened your eyes

At five you asked the priest when god
was coming to our village
he pulled your cheeks and turned his back 
at six you chased policemen with a spoon 
and at twelve taught us 
mellow yellow engine sound 
yaqal’inyakanyaka
rooftops raining
a million feet rise 
Molotov cocktails 

White lies ashes

On your fifteenth birthday 
we exchanged gifts on Makana’s Kop
three years later an East Cape paper 
reported “liberation movements unbanned, 
exiles come home”
the story of the girl found naked 
at the foot of Ntabezono,
a stick shoved into her vagina 
did not make news 

A young boy found the silver chain 
I gave you in his brother’s jacket
Mothers whispered “a familiar voice, 
early hours of the morning 
pleading forgiveness” 
Fathers moaned of “the howling dogs
and the screaming whore 
who disturbed our sleep”  
The law spoke for months 
of “circumstantial evidence”
looked your mother in the eye 
“docket lost, case now closed

Two decades on 
I rest my head on your stone 
and hear your heart’s beat 
the sound of a tidal force twirling 
waves of fists that roll time 
into cannon-balls
churning flames that shred the sky 
as they rise
roaring
Kwanele!
Kwanele!
Kwanele!

(Photo credit: New Frame / Barry Christianson)

Once again, South African domestic workers win in court, expanding domestic workers’ rights everywhere!

Sylvia Mahlangu outside Constitutional Court

Great news! Last week, South Africa’s Constitutional Court ruled that domestic workers ruled that domestic workers injured on the job in the past can claim damages, under the Compensation for Occupational Injuries and Diseases Act, COIDA. This ruling includes the family of Maria Mahlangu, a domestic worker who had worked for the same family for twenty years. While washing windows, Maria Mahlangu slipped, fell into the pool, and drowned. Her family received no compensation. More to the point, the family offered no compensation and the State excluded domestic workers from COIDA. Last May, the North Gauteng Court ruled that that exclusion was unconstitutional but did not rule on whether that unconstitutionality covered past injuries. Last October, the Gauteng High Court ruled that the Constitutional invalidity of the exclusion of domestic workers meant that all domestic workers are due unlimited retrospective COIDA compensation. The case of Sylvia Bongi Mahlangu and the South African Domestic Service and Allied Workers Union, SADSAWU, vs the Minister of Labour then went to the Constitutional Court. Last Thursday, November 19, the Constitutional Court decided that the exclusion of domestic workers from the Compensation for Occupational Injuries and Diseases Act, COIDA, is unconstitutional. Further, “the order is to have immediate and retrospective effect from 27 April 1994.” After 26 years of struggle, domestic worker organizers, Black women such as 77-year-old SADSAWU organizer Eunice Dhladhla “nearly broke into song inside [the Constitutional Court], breaking the law.” After the ruling, Sylvia Mahlangu said she was excited at the decision. We all should be.

Justice Margaret Victor, writing for the majority, opened her decision: “Domestic workers are the unsung heroines in this country and globally. They are a powerful group of women whose profession enables all economically active members of society to prosper and pursue their careers. Given the nature of their work, their relationships with their own children and family members are compromised, while we pursue our career goals with peace of mind, knowing that our children, our elderly family members and our households are well taken care of.

“Many domestic workers are breadwinners in their families who put children through school and food on the table through their hard work. In some cases, they are responsible for the upbringing of children in multiple families and may be the only loving figure in the lives of a number of children. Their salaries are often too low to maintain a decent living standard but by exceptional, if not inexplicable effort, they succeed. Sadly, despite these herculean efforts, domestic work as a profession is undervalued and unrecognised; even though they play a central role in our society.”

Later in her decision, Justice Victor noted, “In considering those who are most vulnerable or most in need, a court should take cognisance of those who fall at the intersection of compounded vulnerabilities due to intersecting oppression based on race, sex, gender, class and other grounds. To allow this form of state-sanctioned inequity goes against the values of our newly constituted society namely human dignity, the achievement of equality and ubuntu. To exclude this category of individuals from the social security scheme established by COIDA is manifestly unreasonable.

“For all these reasons, I find that the obligation under section 27(2) to take reasonable legislative and other measures, within available resources, includes the obligation to extend COIDA to domestic workers. The failure to do so in the face of the respondents’ admitted available resources constitutes a direct infringement of section 27(1)(c), read with section 27(2) of the Constitution.”

This case crosses beyond the borders of South Africa and beyond the African continent. Many countries across the globe, including the United States, continue to exclude domestic workers from labor laws and from labor law protections and rights. That time is coming to an end. Domestic work is decent work, and domestic workers demand formal recognition of the dignity of their labor. Tell your family, friends, colleagues and neighbors about Maria Mahlangu, Sylvia Mahlangu and last week’s decision. Tell them Sylvia Mahlangu is excited. The time to sing the song of the unsung heroines has arrived. Amandla!

Eunice Dhladhla outside Constitutional Court

(Photo Credit 1: Sowetan / Penwell Dlamini) (Photo Credit 2: New Frame / Cebelihle Mbuyisa)

I crush them

I crush them

Justice Albie Sachs
on evening Safm radio
is reading from his
Quest for justice

I crush them
says a teacher 
quite nonchalantly 
of the insects falling 
into her tea

Cutting Edge
is on evening TV
highlighting schools
or rather their dilapidated 
physical states

shaky toilets
shaky classrooms
shaky infrastructure 
shaky promises too 

Justice Sachs tells
of The New Age paper
distributed back then

I crush them
the school’s office ceiling
letting the insects in

No New Age there
No Albie Sachs there
No justice either

How much longer
for learners 
and educators
will to be
crushed

A Tuesday night passes.

(Photo Credit: Daylin Paul / New Frame)