AfriForum CEO, Kallie Kriel. Photo: @kalliekriel
The uMkhonto weSizwe (MK) party’s accusation of treason against Afrikaner rights group AfriForum will be difficult to prove in court, according to legal analysts, particularly if it is unable to unequivocally show that the civil rights group planned its allegedly “treasonous act” ahead of time.
On Monday, the MK party opened a case of treason against AfriForum at the Cape Town central police station for allegedly spreading “misinformation” about the Expropriation Act, which it said had resulted in US President Donald Trump halting millions of dollars in aid to South Africa.
“Their betrayal is nothing less than an act of economic sabotage, a direct assault on our nation’s independence and a dangerous attempt to undermine the will of the people,” MK deputy president John Hlophe told journalists.
Trump cited concerns over the Expropriation Act and Pretoria’s genocide case against Israel at the International Court of Justice as reasons behind his executive order to halt funding.
He also announced that Afrikaners could seek refugee status in the US, a move that reinforced AfriForum’s claims of persecution of Afrikaners — white farmers in particular.
In a “fact sheet” released this week, Trump’s administration claimed that “The Expropriation Act follows countless government policies designed to dismantle equal opportunity in employment, education, and business, and hateful rhetoric and government actions fuelling disproportionate violence against racially disfavoured landowners.”
“As long as South Africa continues to support bad actors on the world stage and allows violent attacks on innocent disfavoured minority farmers, the United States will stop aid and assistance to the country.”
The South African government, most political parties, and large swathes of the media, have rejected Trump’s claims.
The government maintains that its land reforms are intended to redress historical injustices, and contends the act is not part of South Africa’s land reform programme. Instead, it says, the act is designed to enable the state to acquire a specific property from a private owner to fulfil a public function.
The act empowers only the department of public works to expropriate property in this context. The government says no expropriation without compensation has occurred under the legislation.
The spokesperson for the department of international affairs, Chrispin Phiri, said it was not true that the act enabled land seizure or confiscation.
“This misrepresentation fuels unwarranted fears … that white South Africans … are being targeted,” he said.
Despite the political fallout, legal experts agree that the calls to prosecute AfriForum for treason are legally unfounded.
“Lobbying, even if controversial or misleading, does not meet the legal definition of treason,” constitutional expert Phazha Jimmy Ngandwe told the Mail & Guardian, adding that the debate was a political, not legal, one.
“I don’t know whether they will succeed in finding the necessary evidence to support their case. Treason is one of the most serious crimes. Historically, the only punishment for it was capital punishment.
“Treason is the highest crime against the state and its definition is clear. Neither the [Democratic Alliance’s] complaint nor AfriForum’s lobbying meet the legal criteria,” Ngandwe said. The Democratic Alliance launched its legal bid to overturn the act on Friday last week, asking that the Western Cape high court to declare the law to be invalid in its entirety.
Executive secretary of the Council for the Advancement of the South African Constitution, Lawson Naidoo, agreed with Ngandwe, saying treason had a specific legal definition that did not apply to AfriForum’s lobbying.
“Treason requires an intent to overthrow the government through unlawful means. No matter how controversial, political lobbying does not meet this threshold.”
Naidoo said that AfriForum’s engagement with US lawmakers and media was an advocacy effort, not an act of war or sabotage.
“They travelled to the US to promote their land reform and crime perspective. No matter how absurd AfriForum’s actions were, it doesn’t constitute treason under South African law,” he said.
ANC failures
Ngandwe said Trump’s executive order against South Africa stemmed from the government’s failure to effectively manage political discourse surrounding the Expropriation Act.
“The ANC government projected the Act as a tool that would enable land expropriation without compensation, which is misleading,” Ngandwe said. “The Act allows expropriation based on just and equitable compensation, as outlined in the Constitution.”
AfriForum had capitalised on the government’s rhetoric to promote a false narrative that the law would lead to land confiscation without compensation. “They are exploiting confusion for political ends but that does not make it treason,” he added.
Ngandwe cited Minister of Mineral and Petroleum Resources Gwede Mantashe’s statement that African nations should leverage their mineral resources against the US in response to Washington’s stance on the Expropriation Act, which had exacerbated the situation.
Mantashe was speaking at the annual Mining Indaba in Cape Town earlier this month after President Cyril Ramaphosa’s office said he hoped to discuss South Africa’s land policy with the US administration in the wake of Trump saying it was a reason to suspend all aid to the country.
AfriForum chief executive Kallie Kriel has dismissed the accusations against his organisation as baseless, arguing that it was being used as a scapegoat.
“[Trump’s] executive order is a direct result of President Cyril Ramaphosa and his government’s irresponsible actions and policies such as the Expropriation Act that threatens property rights, the Bela Act that is aimed at destroying Afrikaans schools and the SA government’s anti-western foreign policy,” said Kriel.
“AfriForum remains committed to Afrikaners’ future at the southern tip of Africa and insists that urgent solutions must therefore be found for the injustices committed by the South African government against Afrikaners and other cultural communities in the country.”
