/ 28 June 2013

Key Points Act should be abolished,not reviewed

Stefaans Brümmer answers questions about the legality of publishing details from the public protector provisional report into Nkandla.
Stefaans Brümmer answers questions about the legality of publishing details from the public protector provisional report into Nkandla.

The late leader of the African National Congress, Oliver Reginald Tambo, while tirelessly touring the globe to secure comprehensive sanctions against apartheid South Africa during the 1980s, regularly warned world leaders that “apartheid cannot be reformed – it must be abolished”.

This profound demand has rung repeatedly in my mind since Police Minister Nathi Mthethwa announced late last month that the notorious National Key Points Act would be “refined” and “realigned with the Constitution”. Tambo’s epic refrain immediately emerged from my memory, as this Act has always struck me as inherently and irreparably incompatible with our Constitution.

Addressing the International Labour Conference in Geneva during June 1986, Tambo asserted as follows: “Apartheid … must be destroyed in its entirety. For, indeed, how do you reform oppression? … How do you reform a crime so that it ceases to be a crime? Oppression and freedom are antithetical and mutually exclusive; they cannot be made to coexist by the injection of the word ‘reform’.”

Unmasking President PW Botha’s much-vaunted charades of “reform”, Tambo explained that the regime was, in fact, “involved in feverish activities to expand its machinery of repression and continuously escalates the use of force and terror against the people. To justify all this, the racists have elaborated and advanced the so-called doctrine of national security, according to which everything the regime does must serve to reinforce the safety of the apartheid system.”

One of the most sinister statutory cogs in this “machinery of repression” was the National Key Points Act of 1980. It empowered the defence minister to escalate the security and secrecy of any place at any time, if it appeared to him “so important that its loss, damage, disruption or immobilisation may prejudice the republic, or whenever he considers it necessary or expedient for the safety of the republic or in the public interest”.

This power was subject to no guidance, restraint or oversight, and was employed in practice to enable the apartheid state surreptitiously to convert private premises into paramilitary bases and arms caches, which the property owners were precluded from refusing, responsible for funding and prohibited from disclosing to anyone, under pain of imprisonment. Thus, the state appropriated a significant advantage in its asymmetrical war against the ANC and other liberation movements.

Moving its adoption by Parliament, the deputy defence minister, Kobie Coetsee, justified the Act as follows: “South Africa finds itself in the midst of an unconventional war which up to now has been of relatively low intensity. However, it may be expected that in the future the terrorist onslaughts will increase both in frequency and intensity … The private sector is in the front line of a terrorist onslaught. The enemy threatening us can best be combated by a calm and determined government, public and business community.”

The purpose of the Act was apparent to the ANC. Addressing an international business conference in London during 1987, the exiled Tambo described the practical implementation of the Act: “Hundreds of installations and areas have been designated national key points under the National Key Points Act. 

“Owners of these factories or plants are required to train and equip their own militia. Usually, but not always, made up of white employees, these are trained in ‘counter insurgency and riot control’. 

“The companies have to provide access for SADF units to their premises and to incorporate their own militia in regional so-called defence planning. They also have to provide storage facilities for arms. 

“In terms of this Act the process is kept secret and there are severe penalties for even disclosing that a given plant, mine or installation has been designated a key point.”

On that occasion, Tambo again argued against superficial reform: “It is a strategem by which Botha tries to retain control over the lives of our people, to arrest the process leading to fundamental change and to steer this process away from the fulfilment of our people’s aspirations… 

“Let it be said clearly: the African National Congress is committed to bringing about fundamental change to the entire socioeconomic and political formation which constitutes the South Africa of today.”

Even after Tambo passed away, his demand endured.

Act still alive
In 1997, at the Truth and Reconciliation Commission’s special hearing on the role of business, the ANC described the national key points process as “the privatisation of repression”, arguing that it not only shifted “some of the financial burden and responsibility for ‘national security’ on to the private sector, releasing apartheid security forces for other activities”, but also created “a ‘multimillion-rand bonanza’ for the private security industry”.

Yet, 16 years on, the Act remains law and, although its “bonanza” effect is eerily familiar, the ANC’s commitment to Tambo’s vision of “fundamental change”, rather than “reform”, seems a remote memory. 

The democratic project of dismantling the architecture of apartheid is clearly incomplete as long as its most sinister instruments of repression remain in force.

Far from being vanquished, this insidious statute has only been transferred from the domain of defence to police, which has itself undergone an alarming process of paramilitarisation in recent years. It is particularly concerning that the modern application of the Act has been justified by reliance on the same “so-called doctrine of national security” that Tambo criticised so vigorously.

Assuming that the state does not wish to wage a private war against its citizens, why is this Act still alive? 

Not only its contents but also its very spirit and scheme are inconsistent with our constitutional dispensation. 

It cannot be “realigned” with our supreme safeguard of liberty, equality and dignity. It must be entirely repealed if apartheid is to be buried finally in all its forms, and if the lifelong struggles of Tambo and so many others are truly to be honoured.

Ben Winks is a candidate attorney at Webber Wentzel and a visiting researcher at the University of Johannesburg.