Africa's pandora's box

In the bustling streets of Cape Town, dilapidated white minibuses are a common sight. For decades, these communal taxis have been a primary means of transport in South Africa, particularly for working class Black residents – denied access, through apartheid and now poverty and infrastructural collapse, to car ownership and public transport.

It’s 11 January, and a small group of young men are gathered around a parked minibus near Greenmarket Square. A loudspeaker is broadcasting live from The Hague, where South Africa has just launched its legal case at the International Court of Justice (ICJ), charging the state of Israel with genocide.

The transfixed crowd only had to wait two weeks for the court to deliver its interim judgement. A decision on whether Israel has committed genocide could take years, but in the meantime the court has announced ‘preliminary measures’. It stops short of calling for a ceasefire as South Africa has requested. But it instructs Israel to prevent genocidal acts, including the killing of Palestinians, ruling that South Africa’s case is ‘plausible’ under the Genocide Convention.

Pro-Palestinian activists in Cape Town
Pro-Palestinian activists write names of lives lost in the Israeli bombardment of Gaza outside South Africa's Parliament on 21 November 2023. MPs voted to close the Israeli embassy, but president Cyril Ramaphosa has declined to do so. NARDUS ENGELBRECHT/AP

The judgment is seismic. Francesca Albanese, UN Special Rapporteur on the Occupied Palestinian Territories, says the case ‘seems to have opened a new era in the relations between the Global North and the Global South’. South Africa’s Foreign Minister Naledi Tandor placed the ruling in the context of South Africa’s own history: ‘South Africa got over the apartheid oppression,’ she said. ‘They [the Palestinians] will overcome.’

Neither could the case have come at a more significant time: the country’s citizens will head to the polls this year for the seventh time since the end of apartheid exactly 30 years ago, before which suffrage was restricted to whites. And for the first time, the ruling African National Congress (ANC) is considered to be at real risk of dropping below 50 per cent of the vote and losing its parliamentary majority.

Taking such a leading role on the world stage has boosted morale in the ANC leadership at a time when its domestic record leaves a lot to be desired.

The nine lives of the ANC

South Africa’s application took many by surprise, given the ANC government’s initially weak response to Israel’s bombardment of Gaza.

‘It’s such an interesting problem for us to even interpret why a relatively acquiescent foreign policy regime shifted into such an active and progressive one,’ says Patrick Bond, director of the Centre for Social Change at the University of Johannesburg. ‘South Africa wouldn’t promote Boycott, Divestment and Sanctions [policy towards Israel] and secondly wouldn’t cut diplomatic ties. It may well be impossible now [to restore normal diplomatic relations].’

South Africa’s shift in approach may have severe economic consequences: there is already speculation that the US could revoke the country’s access to its markets under the Africa Growth and Opportunity Act.

‘If so, that’s losses in metals and automobiles and even vineyards,’ says Bond. ‘That would be roughly $3 billion worth of exports. If that’s the case then jobs in aluminium, steel, automobiles and petrochemicals would be lost. There may be this sort of punishment from the US.’

Taking such a leading role on the world stage has boosted morale in the ANC leadership at a time when its domestic record leaves a lot to be desired. Thirty years of democracy and a programme of ‘Black economic empowerment’ has changed the face of commerce and created a new Black middle class, but a walk around many districts of Johannesburg is likely to leave you wondering if segregation is still in force.

In spite of an avowed programme of redistribution, South Africa is officially ranked the most unequal country in the world. Corruption is considered to be endemic, especially in leading state-owned enterprises like Eskom, the national power provider. South Africa is still reeling from the legacy of Jacob Zuma, the charismatic and controversial former president whose reign saw ‘state capture’ at the hands of the multi-billionaire Gupta brothers, whose businesses siphoned off at least R15.5 billion ($826 million) from public funds.

At a memorial service in Soweto for the legendary photojournalist Peter Magubane, whose work brought the anti-apartheid struggle to the eyes of the world, I’m introduced to Seth Mazibuko. He was the youngest leader of the 1976 student uprising in the Soweto township, which was triggered by the apartheid government’s decision to change the language of instruction in so-called ‘Bantu’ schools to Afrikaans. He subsequently spent 18 months in solitary confinement and then seven years on Robben Island, in the maximum-security prison reserved for political prisoners during apartheid.

Unlike many of his fellow prisoners of the liberation movement, Mazibuko did not go into politics after the end of apartheid – and he’s still getting into trouble. Most recently, he was arrested for protesting the instalment of pre-payment electricity meters in Soweto, where he still lives.

‘The ANC cannot do anything to help themselves at the moment,’ Mazibuko tells me in a cafe in the upmarket Johannesburg suburb of Rosebank. One incident he singles out where the ANC has been ‘found wanting’ is the 2012 Marikana massacre, in which police gunned down striking miners with the direct collusion of Cyril Ramaphosa, who subsequently became South Africa’s president.

‘The people of South Africa gave the ANC more than twice, thrice, to get themselves together. There is a thinking among people that says, “let’s take them into an ICU”. Let’s not take them to the mortuary, please. Maybe they’ll get the medication and they’ll come out better. We need the ANC somewhere in the future.’

In the apartheid era, the outlawed ANC fought from underground, from exile and from prison – on the basis of the Freedom Charter, which proclaimed that ‘the mineral wealth beneath the soil, the banks and monopoly industry shall be transferred to the ownership of the people as a whole’. But in what Ronnie Kasrils, former intelligence chief of the ANC’s armed wing uMkhonto weSizwe (MK) and later a minister under presidents Nelson Mandela and Thabo Mbeki, termed a ‘Faustian pact’, the liberation movement made significant concessions to big business and the former regime, which would inhibit its radical agenda from the dawn of democracy.

'The ANC cannot do anything to help themselves at the moment.'

Seth and Ramophosa
Seth Mazibuko, left, ser ved time in Robben Island for his role in leading the 1976 Soweto uprising. He says South Africa’s current president Cyril Ramaphosa, right , and much of the ANC leadership has been ‘ found wanting’. JACOB MAWELA

Corporate colonialism

There are few stories which illustrate the failure of the Freedom Charter’s demands quite like that of the River Club development in Cape Town.

In 2015, Liesbeek Leisure Properties Trust (LLPT) purchased a 14.7 hectare site in the Observatory district of the city from the public railways and ports company Transnet. The developer paid just R12 million ($800,000) for the site. Before long, it was announced that Amazon would be building its Africa HQ there. This was supported by the City of Cape Town council, whose mayor Dan Plato described it as a ‘significant boost to the Cape Town economy’. Plato’s party the Democratic Alliance (DA) – South Africa’s main opposition party on a national level – remains in power in Cape Town and the Western Cape province.

The site’s history is at the root of the current conflict over the Amazon development. The area had been occupied for millennia by the Indigenous Khoi – derogatively referred to as ‘Hottentots’ – and nomadic Sān, described in the past as ‘bushmen’.

At the Battle of Salt River in 1510, the Khoi defeated a detachment of invading Portuguese sailors. Later, in 1652, the Khoi and Sān fought a series of wars against the Dutch on the development site, and were forced to make peace on unfavourable terms. Their land was then confiscated and enclosed to allow ‘free burgers’, Dutch men granted special settlement rights, to move in. It would be the start of the European settlement that has shaped South Africa’s history ever since. Those Khoi and Sān who survived the wars could no longer carry on their traditional ways of life.

Leading the fight to protect the ancestral lands from Amazon’s clutches is Tauriq Jenkins, high commissioner of the Goringhaicona Khoi Khoin Indigenous Traditional Council.

‘History is repeating itself on the same site where Roman Dutch law deployed title deeds to legitimize Indigenous land theft,’ he tells me at a cafe near River Club. ‘This is where the whole idea of enclosure began, private property began. This is an epicentre of liberation and resistance.’

After the original plans for the River Club were launched, a deal was struck between the developers and a new, alternative group claiming to represent the Khoi and Sān, the First Nations Collective, for a ‘cultural, heritage and media centre’. This group swung behind the development. But the Western Cape High Court halted the development after a lawsuit led by Jenkins in March 2022.

A second legal case then challenged Jenkins’s legitimacy to represent his Traditional Council, on the alleged basis he had misrepresented Indigenous elders who in fact, it was claimed, supported the development. A judgment in November 2022 branded Jenkins a fraud, set aside his authority to represent the Traditional Council and rescinded the interdict.

In January this year Jenkins launched a fresh case seeking to reinstate the order. One of his lawyers is Tembeka Ngcukaitobi SC, a member of South Africa’s legal team at the ICJ. Jenkins alleges that the chief of developer LLPT, Jody Aufrichtig, his associate Mark Fyfe, and attorney Tim Dunn ‘conspired to neutralize opposition to the multi-billion rand development for Amazon’. His application to the court includes an affidavit signed by Ebrahim Abrahams, a former senior chief of the Traditional Council and past supporter of the development, who alleges he was told by Indigenous elders they were offered money in exchange for support.

An ‘unsavoury’ encounter

After our interview in the cafe, Jenkins walks me over to the site so I can see it with my own eyes. He tells me he’s been granted a protection order after receiving death threats. Taking on international capital is a risky business.

Suburban houses and shops give way to an overgrown ravine and the construction site comes into view. The shiny Amazon building looks complete from where we’re standing, though Jenkins tells me that from the other side it resembles a mere shell of concrete and glass. So we loop round. Standing between an arterial road and the river, gazing between the cold corporatism of Amazon’s headquarters and the imposing mountains behind, the fight for a South Africa that doesn’t depend on the world’s largest corporation extracting land and labour in perpetuity comes into sharp relief.

We head back towards the shops and cafes of Observatory, and I hear the sound of a car engine. ‘That’s odd,’ says Jenkins. ‘You don’t normally get cars coming up here.’ A beige Land Rover has driven off the road and is crawling towards us. In the front seat are two white men, probably in their sixties. The vehicle shudders to a halt a few metres away from us and the men clamber out. Their crimson faces offer us a distinct scowl, and I pause before Jenkins serenely murmurs: ‘I suggest we keep walking.’

The men, in short-sleeved shirts and khaki shorts, have a gaunt but distinctly athletic look about them. As we cross the bridge, they maintain a piercing stare, allowing us to develop some distance before following in our wake. At the end of the bridge, the path descends downhill. I look back and upwards to see the pair standing at the foot of the bridge, their gaze still intently fixed upon us. ‘I think we both know what kind of men they are,’ says Jenkins. We breathe a sigh of relief as we reach a high-class cafe where three middle-aged women are sipping tea in the courtyard. I ask a waitress for the Wi-Fi password, and she responds with a grin: ‘It’s “happy days”!’

After I return to Britain, I contact Aufrichtig, Fyfe and Dunn, the three figures accused of ‘neutralizing’ local opposition to the development, to put the allegations to them. Calling me back, Aufrichtig asks if my query about the Land Rover incident was ‘tongue in cheek’, adding: ‘We don’t have any security. You must be careful, that area can be a little unsavoury. But certainly [it was] not us, that is with 100 per cent certainty not the case.’ After telling me he would ‘not engage’ with any of my questions himself, the LLPT director goes on to claim that the project has faced dozens of ‘extortion attempts’ by elders seeking financial kick-backs. ‘We’re very proudly South African, and it ain’t gonna happen on our watch. But it’s been tough here, we won’t pay money, we won’t bow down to extortion attempts, and unfortunately in the environment we live in it doesn’t stop.’

I then receive an email from Resolve Communications, a PR firm set up by Tony Leon, the former national leader of the DA. It contains a statement issued by the LLPT which describes Jenkins’s latest lawsuit as ‘not only… a vexatious application but also one which has no merit and is in fact an abuse of the process for numerous reasons’. It says the Trust has ‘no knowledge of any claims made by Jenkins and his associates’, and has ‘always acted professionally and ethically and with respect for all First Nations individual and groups’ own agency’, accusing Jenkins ‘and his supporters’ of ‘turning to the media to continue driving their misinformation campaign’.

Dunn, the lawyer who represented the group of Khoi and Sān who challenged Jenkins over his legitimacy as council chief, refutes the allegations as ‘false and defamatory’, and the latest lawsuit as ‘vexatious and bad in law’. Fyfe does not respond to my request for comment. Nor does Amazon.

Violence and segregation

Amazon’s development of Khoi and Sān ancestral lands is seen by campaigners as a continuation of their ongoing struggle against colonialism and apartheid in Western Cape province.

In 1950, the apartheid government introduced the Population Registration Act, which codified the concept of ‘coloured’ people – an intermediate category between white and Black. The (pre-apartheid) colonial censuses conducted in the 19th century had included an ‘other’ category, ‘associated with the shameful… weight of miscegenation’ – the mixing of races – according to the historian Tshepo Masango Chéry, alongside ‘European’, ‘Kafir’ and ‘Hottentot’. The new concept of coloured gave mixed-race people a fixed identity with a ‘superficially stable meaning’, Masango Chéry says. Coloured people, ‘who had elided these divisions in the past’, would no longer have an identity which acknowledged the legitimacy of relations between the races that apartheid was designed to keep separate.

The Khoi and Sān were lumped into the coloured category under the 1950 law, a classification which continues to this day. It has been described as an act of ‘bloodless genocide’, though the historical treatment of the Khoi and Sān has been far from bloodless. Angelo Louw, of Greenpeace Africa, concludes: ‘The forced classification of Khoi-Sān as coloured stunts society’s ability to imagine them as anything but.’

The scars of this legacy are exacerbated by the modern day poverty of the Western Cape’s coloured population. Many remain ghettoized in the townships of the Cape Flats, an area uninhabited till the 1950s when so-called coloureds, including many Khoi and Sān, were forcibly relocated there from areas reclassified for whites only. The DA is recognized to have efficiently managed the city and provincial government in Cape Town, with the Western Cape having the best record from South Africa’s auditor-general. But it has faced criticism over its failure to tackle the continued segregation, poverty and gang violence in the Cape Flats.

The significance of South Africa pursuing the ICJ case against Israel has essentially been seen in the context of the shared legacy of apartheid. This is largely valid, but the South African side of the coin is not completely confined to history.

‘South Africans understand 1948 because when the Nakba [the Palestinian “catastrophe” of eviction and dispossession when the state of Israel was founded] started, that’s when the National Party came into power,’ says Jenkins. ‘South Africa’s destiny in many ways was tied together with the Palestinians.’ But the crucial point for Jenkins is that while South Africa may have overcome the state of apartheid ‘we are nowhere near to conquering the apartheid state’.

Justice at home?

In Cape Town, the contemporary relevance comes to the fore. On 12 January, the day Israel mounted its defence in The Hague, a group of activists occupied the DA-run local government headquarters. Members of the Cape Youth Collective lay on the floor under Palestinian flags and beneath a giant portrait of Nelson Mandela and Archbishop Desmond Tutu, broadcasting the sound of bombs falling on Gaza through loudspeakers. The leaflets they scatter proclaim: ‘From the Cape Flats to Gaza: DA watches as blood spills.’

‘This has the potential for opening up an African pandora’s box, in terms of intergenerational restorative justice and issues of genocide.’

The aim of the protest was not only to condemn the DA’s lack of solidarity with Palestine, but also to highlight the parallels between the local government’s treatment of the impoverished communities in the Cape Flats and Israel’s ghettoization of the Palestinians. ‘Here in the Western Cape, the Black and especially the coloured community, they are the ones keeping the DA in power, but there is significant support in the very same working class communities for the people of Palestine and their just struggle,’ says Abeedah Adams, a trade unionist.

Jenkins also sees the parallels.

‘The Israeli government says the Gazans are Hamas, that they are… a danger to themselves, as well as a danger to everyone else. This is the same thing they say of the Cape Flats: the Cape Flats is overrun by gangsters, these are a community that are a danger to themselves and everybody else. So we need to cut them off and make sure it doesn’t spread. This is such a strong, direct parallel of the impact of that kind of spatial design.’

With the Khoi and Sān genocide still largely unacknowledged, South Africa’s prosecution of Israel could mark a turning point.

‘This ICJ case is of extraordinary significance to all of us because it’s an assertion of a kind of restorative justice that beckons not only so strongly for the Palestinians, but it also for the traditional communities here,’ says Jenkins. ‘This has the potential for opening up an African pandora’s box, in terms of intergenerational restorative justice and issues of genocide.’

Another significance of the site being developed by Amazon is that this is where Jenkins’s organization wants a Truth and Reconciliation Commission for the Sān and Khoi to take place. This is evidently a call for justice for Indigenous peoples, but not only that.

‘It’s our Ground Zero precinct,’ Jenkins asserts, ‘and it’s a site where we want to get recognition committed to restorative justice, committed to acknowledging that genocide has happened, committed to looking at how we will deal with language loss, forced removals and intergenerational trauma.’

But as well as facilitating a welcome step towards international institutions in which Global South countries can play a genuine part, it has the potential for far-reaching consequences at home. With public services collapsing, record unemployment and pandemics of poverty and violence, the prospect of a national appraisal on Indigenous peoples will be far from the minds of many South Africans. But it does offer the chance to reckon with the forces of power responsible for many of the country’s current woes. And if the lesson of the ICJ case is that justice is universal, it’s only right.