This resource is hosted by the Nelson Mandela Centre of Memory, but was compiled and authored by Padraig O’Malley. It is the product of almost two decades of research and includes analyses, chronologies, historical documents, and interviews from the apartheid and post-apartheid eras.
01 Feb 1999: Kriegler, Johann
POM Judge, go through these as I ask you. I know you had talked to Judy and I have taken out all the bits of the transcript that relate to references to Home Affairs. Since by the time this is published Home Affairs mightn't even exist
JK None of us may exist.
POM Anyway, let me begin in a way in our last interview we touched on a number of the concerns that were on your mind at that point that obviously grew as time went on rather than getting resolved, but if I were to list the following items and ask you in what priority in reaching your decision which ones were of the major priority, which ones were of most concern to you, and they are: (1) the under-funding of the IEC; (2) the bar-coding issue; (3) having to report to Home Affairs rather than directly to parliament; (4) having to be financially accountable to Home Affairs; (5) the use of civil servants to assist in the registration process; (6) the proficiency of Home Affairs itself to both issue and the bar-coded IDs and more important, what you mentioned the last time, to actually deliver them particularly in rural areas to the intended recipients; (7) the 'government undermining the independence of the IEC'. Where would you begin in listing them?
JK I don't think that it's a fair question. I don't think that you can disintegrate what is a syndrome. In substance the decision I took to tender my resignation was because of a combination of those features, the bar-coded ID being a minor feature and that's a matter of litigation and the court can resolve that quite comfortably. It's basically the relationship between the electoral agency and government as manifested by to whom does one report financially, to whom does one report politically, to whom does one report administratively, who runs the electoral process de facto on the ground, who hires and fires. You can't dismember the body without doing violence to the whole idea that you've got a constitutional agency that is to run the show and it is now not running the show. I couldn't prioritise other than saying ultimately it's a question of independence.
POM Who is running the show.
JK Yes, who is de facto running the show. If you cannot determine your policy in the knowledge that you can debate your financial requirements to execute that policy then you can't make policy. If you have ex post facto and ex cathedra limitations put on your budget without an opportunity to debate the issues underlying, the money doesn't stand on its own, the money's there to do things and if you cannot debate what is to be done and how we're going to do and how we're going to afford it then you can't take policy decisions, then you are in a position of dependency. If you cannot determine whom you will get to do which job where, when, then you don't control the actual delivery so between the conceptualisation, the strategic planning at the one end and the actual execution at the other end you have a continuum of saying it's not the commission that is in control of it, it's government that's in control of it.
POM Now when you say government do you mean Home Affairs?
JK No, government, government in the broader sense. Home Affairs is an agent. Home Affairs was not the creator of the concept of controlling financially and administratively and being the political conduit for the commission. That was a government decision. It was an instruction that was being carried out by Home Affairs, it wasn't a scheme of its devising. It's just the instrument of state that has to do that. I've discussed all of this with you before. On what basis do you offer a contract of employment to your senior staff? Do you offer them a three year, a five year contract, do you appoint them at level X, Y, Z? To my mind you can't be said to be in control of the organisation unless you can decide those things, not unilaterally and not off the top of your head but at least you can be a participant in the decision. That didn't happen. Government decided and gave a fiat via Home Affairs saying this is what you will pay and that is what will be the conditions of employment. It went so far as the Minister of Finance saying via Home Affairs, "This will be your staff structure, this is the establishment that I will permit you to have."
Now that's not the way I read the constitution. By all means accountable, by all means say this is what I need, that's what I need, let's look, let's measure, let's see how much cloth we've got, what has to be covered, what will have to be left bare, we could do without this at the moment, we can't do without that. Nobody has talked about financial licence but at least co-responsibility and that we were not granted.
It's a long time coming and I think I've made the point to you before, if I have I apologise but it's important, I'm not ascribing bad faith to people, I'm ascribing bad hearing to people: they would not listen. We've got a unique structure here that our country has never seen before. We don't know of a major parastatal with powers of this kind actually pre-determining the very composition of parliament being outside state control, dependent upon the state for its funding, accountable to the legislature for its actions both financial and political. We've never had that kind of animal. You haven't got it in the United States and you haven't got it in Ireland, to use two examples. They haven't got it in the UK. It's a new kind of institution and I anticipated teething troubles, I anticipated quite extensive teething troubles because it's a new thing, it's got to be fitted into the machinery of state: where do you put this governor on? Do you put it on the engine, do you put it on the fuel supply, do you put it in the electricity supply, wherever, but how do you integrate it and how do you ensure that it functions properly in harmony with the rest of the machine? I was perfectly happy to debate and continue debating and argue and wrist-wrestle each one of those but we were not given the opportunity.
POM When you say 'we'?
JK The commission.
POM It's the commission, because the impression one gets from reading media accounts and both the editorial comments and the columnists writing their various interpretations or whatever, is that it was you on the one side and the commission on the other.
JK I'm quite happy to stand on the record. I've got no problem, I can stand on the record, they can go and check the minutes, the files, the correspondence, all of it. It's a cheap trick to try to drive a wedge between me and the other commissioners and particularly to play the race card which is both unwarranted and unwise.
POM I saw that played, reading not between the lines, but Mbeki played it -
JK Oh yes he quite openly played it.
POM - in a way where he more or less said, seemed to say or maybe said, I didn't see the actual letter
JK I've got the letter here.
POM Who are you? You come from a white, privileged, Afrikaner background and you are dictating to us how we should run you don't trust that the ANC, the liberation fighters, the people who were out there in the bush fighting for liberation, can be entrusted with the task of ensuring that our democracy will be protected, that it needs you. And that's very openly
JK That's what he said and I disagree with it. I think that if anything I stand on the constitution, I don't stand on my own idiosyncratic interpretation.
POM It struck me, just in the part of the correspondence that was printed, that he missed the point in the sense that the constitution makers did not trust, if you like, government or those who fought for liberation or whatever to protect democracy which is precisely why they set up the IEC in the first place to be outside and to be independent of government.
JK That's the way I read the constitution, but no doubt the Deputy President has much better legal advisers than myself. I think I stand with the constitution but I'm not in a public debate with the Deputy President. He did not hear me, he did not hear me over 18 months, two years. It's a great pity. I can hear people despite the colour of their skins. I don't think everybody has that capacity in this country and it's one of the sad legacies of the system that we have had and a good deal of the press reaction is a manifestation, it's a knee-jerk response: if you disagree with somebody, you look at the colour of his skin and you say he's a whitey or a darkie and that's why he's saying it. You don't say he's a bloody fool and that's why he's saying it, or I disagree with him or he's ideologically bent, he's a Marxist or a capitalist or a socialist or a fascist, you say he's a whitey or a darkie or worse words.
POM Kader Asmal has a few
JK I have not read it, I'm not going to read it. I scanned it, I was delighted to see at last somebody in government has debated budget with the IEC. It's the first time ever, it's the first word that has come from a cabinet minister about the justification or the planning or the possibilities of alternatives. He happens to be grossly uninformed but he's likely to remain uninformed because he won't talk to me. I thought that that was what the process
POM Or you can't get a word in edgeways.
JK No, I'm very fond of Kader, I like him.
POM But here he says, "The complaint has been made", and I'm saying this because it says, "By the judge, but oddly not by the constitution, that the IEC has been under-funded. For the 1994 election the allocation was R - "
JK Mr O'Malley, let me interrupt you, he doesn't know what he's talking about. He's ignoring the question of general registration of voters which is a massive undertaking which was not there in 1994, which entails an enormous job of work which we spelt out in great detail and said R965 million is needed. We debated it from R1.1 billion down to R965 million with a senior official of the Department of State Expenditure. It's not sucked out of the air, it's there if they would just read the fucking stuff but they don't.
POM Did they agree to the figure?
JK They've never said no, they never said no. They said, "We'll give you R500 million, come back later in the year under the supplementary estimates." Come the supplementary estimates they tell us we'll give you another R140 million. We say, "You're out of your bloody minds. We're a fortnight from registration, how do you think we're going to do registration in this year and get all of our other commitments done on R640 million when we told you we need R965 million?" Nobody sat down and said, "Hey boys, you can't do that, you must do this, let's do that, let's plan this." Never, ever. The only debate we had was at an official level where the figure was settled. That's the agreed figure. All right 'agreed' in quotation marks because neither official had authority to bind a principle but our financial people came back and said, "This is what we've agreed with State Expenditure. There will be a R500 million allocation on the budget but we must talk again later in the year." We went public on this time and again. Opposition politicians say, journalists say, how are you going to make do? We say, "We've been given 500 out of 965, the figures aren't sucked out of my thumb ex post facto. We are convinced that government will come to the discussion with us and we will come to terms because there is no alternative." You don't buy one election or 1½ elections or ¾ of an election like you can build less hospitals or buy less military or naval vessels. You either do or you don't. We didn't get to terms.
All right. Where do I put the priority? I say, you don't come to terms because people don't recognise the constitutional role you've got to play and when I, with the full authority and backing of my commissioners, say we can't do this, we are told the good judge doesn't know how to make sums, he must go away and not think it's 1994 where he can spend the taxpayers money as he sees fit, which is a gratuitously, deliberately designed insult. And not coming to terms, insults I can deal with, I've been at the Bar for years, but at least you must come to grips with the substance and we never did and we still haven't. Ironically though, I think that our funding for the electoral year is going to be very much better. We were told in December that we would get R550 million on which to run the elections. There have been very much more meaningful discussions over the last couple of weeks and I think that the IEC will get its funding.
POM But if there were more meaningful discussions and you were getting the R550 additional million rands ?
JK No, that's for next year's budget, next financial year which starts 1st April, which is the election year.
POM Why did you not think that was going some way to resolve some of the issues that you were raising, i.e. why did it still necessitate your resignation at this point?
JK I've told you that you must look at the composite. An agreement squeezed to look again at the budget for next year at an official level to me is not addressing the problem at all. It is you've made sufficient noise at the back door and somebody will now send somebody out to go and keep you quiet. It's not addressing the issue, it's not addressing the issue of why have we not been able to come to terms, what is wrong with the planning of the election, what is wrong with the strategy. We haven't got there, we've got nowhere near there. It's a sop, yes.
POM I just want to go through some things for the record because they were mentioned in
JK Presumably all of this is going to appear much later?
POM Oh it will be in the third election.
JK I have no intention of exacerbating what is already a far too heated debate at the moment.
POM At the earliest it will be in the year 2002.
JK I'm perfectly happy.
POM It could be even later.
JK That's likely to be posthumous.
POM We could be in the next election, talking about funding for the next election. It was just some of the comments that
JK Oh that headline is so malicious!
POM I know, yes,
JK Because I made a little self-disparaging joke at the time and everybody misunderstood it like that.
POM I'm just asking you these things because I want to clarify the record as regard the kind of allegations made against you, I want to hear you say trash, bullshit, whatever. It says, "Some say", whoever the some are, "that Kriegler looked at the research results", this is the HSRC results, "and realised that many whites did not have bar-coded IDs. Kriegler himself says that the results show that in white areas it was New National Party and Democratic Party supporters who did not have these IDs while in black areas the Inkatha Freedom Party and United Democratic Movement were those without them."
JK I did say that, it's true. I said that in public. I didn't say it in private, I said it in public and I think that that is constitutionally highly questionable. If you introduce a system of qualification other than that which the statute which deals with ID documents says, the Act says you can have any one of those, they're still kosher. You now bring in an Electoral Act which says that this one that is held by middle-aged whites, Indians and Coloureds and by IFP and UDM supporters is not good enough. I think that you're running yourself into trouble with the court saying that you have introduced a requirement which is unconstitutional because you're putting unnatural, uneven impediments in the way of certain ethnic and political groupings. Yes. I think they're making the DP's case for them.
POM In a sense the implication, there are number of what I see as kind of under the surface inferences
JK Mr Tsedu is a disgrace to the profession of journalism. He is one of the more distasteful inheritances of apartheid, he is so bitter, he is so angry, he is so filled with hate against whites that he really cannot - (break in recording)
JK I can't deal with that, I can't deal with ghosts. I am perfectly happy to stand on my record, I have no problem between myself and my Maker as to where I stand on human rights, on liberty and on non-racism. I've got no problem. And of course when somebody introduces legislation which seems to prejudice particular groupings of society I will say it's contrary to the interests of middle class whites. The fact that I'm a middle class white doesn't make it easier for me to say that nor does it make it more difficult to say that. I'm a judge, damn it. I can be dispassionate about where I stand. I can hear an income tax case without thinking, oy, this may be of interest to me. I can hear a case between an Afrikaner and a Jew or an African or whatever, I couldn't care a damn. I would probably be a little bit rougher on my own than on the others as a judge because I happen to know their foibles better. But the suggestion which is underlying that, that I got hot under the collar about an injustice towards my group
POM Or that you were anti-ANC.
JK For God's sake, I went to the Deputy President confidentially, quietly, repeatedly. The commission devised strategies, this commissioner would go and see so-and-so where he had an entrée and that commissioner would go and see so-and-so where she had an entrée and I would do this and the next commissioner would do that, in order to prevent the very situation that we've got now that there's a confrontation on this issue. The simple truth was that I said to the Deputy President, "Sir, the case made out by the DP and the NP is not without substance but it's not my job to tell you that. All I can tell you as a lawyer is that I don't think the cases are without substance, but what I can tell you is if these cases go to court the programme for the election is disturbed because win, lose or draw, let's assume that those cases are without any substance, they will still upset the progress of the electoral timetable because of the way that litigation runs." And I took him through it, I'm a lawyer and I know he's not a lawyer. I said if we take the best scenario, is that the court within a week chucks out the case and says it's rubbish, then the unsuccessful political party that brought the case notes an Appeal and when do you think the Appeal is going to be heard? That Appeal can't be heard until sometime in March or April. In the meantime we can't close off the registration process because you don't know what the law with regard to qualifying documents is until the Constitutional Court has ruled on it ultimately. If we go ahead and we prepare a voter's role on the basis that NP and DP are talking nonsense, we can't ever rest on that because we may have to go back and run another general registration on the basis of non-bar-coded ID books if the Constitutional Court should rule differently. And I must tell you it's not a far-fetched possibility.
POM Now he says
JK He says I lied to him.
POM He says that you said that the case had no basis in fact or in his letter, to quote -
JK I wouldn't, I'm out of my bloody mind, that's why I went to see him. I'm prepared to accept, I know I've got the letter, I'm prepared to accept because I'm a good loyal South African, that he misunderstood me, but that's the only possibility because I said in September already when they were talking about adopting the legislation, it's running an unwarranted risk. It's been my attitude consistently throughout, it's been the commission's attitude. Mr O'Malley, you know who said that?
POM It says that in the letter Mbeki said
JK I know he says that, I know precisely what he said but you know who told him that?
POM - that the judge had told him in December that the court case, "had no basis in law or fact and that insofar as they related to the independence of the IEC the exercise was purely partisan, political initiatives which you could not understand and of which you strongly disapproved." You're saying it was the opposite?
JK Mr O'Malley. Untrue. I went to him to warn him. I wouldn't warn him about something that he could be comfortable about. I have always said, I've got my affidavit there that was filed in the court cases. I don't say it's nonsense, it's not for me to say it's nonsense, I daren't say that. I'm a judge and it's going to come before other judges. I never said that. I know who did say it. It's his legal adviser, here, in this office, and again before the President.
POM She said that you said that?
JK No, she says the cases are of no substance, they're a try-on by the two minority parties. I've never said that and I wouldn't say that. I don't believe that, never believed that.
POM In fact you said you went to him and said the very opposite, that in fact there could be consequences.
JK What I did say is I am furious that they've only come now. We had told them months ago what we thought about it, months ago. They should have brought the case months ago, they should not have waited until mid-December. If they had moved quickly in October, even in September when it was on the cards what the legislation was going to be, we would not have had this embarrassment with regard to the electoral programme. I said that to him. I didn't say and I couldn't say and I never have believed that the cases are a nonsense. If I'm put on the rack I would tell you I would probably rule in their favour, but I don't have to, I'm not hearing the case. That letter was written by the Deputy President in anger. I think that anybody who writes letters in anger must always put them in a drawer and think again a little while later. I don't think he wrote the letter. I think the letter was written for him. This is all speculation on my part but I honour the man and I've got respect for the man. I think he was misled because the contents of the letter are false. I don't ascribe it to him. The attempt to smear me as a racist, doesn't understand the liberation struggle, I don't think comes from the Deputy President either although he puts his name to it. I think that that too is a gambit.
POM Do you think, and there's a reference that you are not either committed to the full process of transformation.
JK I don't go public on this. I have committed my life to it. I have worked my guts out for five years solid, purely gratuitously, with no accolades, no money, no thanks, no nothing. I've done my full time job here and I've done this nights and weekends. I've been working between two offices for five years. For what? Because I'm not committed? Because I don't understand what liberation is about? I was reviled for years in my own community for being a 'kaffir boetie' and a communist. If you don't know the term it means a nigger lover, it is as ugly and as rabidly racist. I don't come here to be insulted by whippersnappers like Miss Gumbe nor like by Mr Tsedu. I've paid my dues.
POM Do you think at a more general level that during the apartheid days that many liberal whites, because they were able to, voiced opposition against the government, against its policies, and were in a way at the forefront of the public complaints against apartheid were representing the minority voice or whatever and that when the ANC was unbanned they in a way said, well thanks very much, your day is over now, we're stepping up to the wicket?
JK I'm not in that group, I never was a liberal.
POM You know what I mean? They're kind of saying
JK I understand it.
POM - you're a white and you were this and you were that but you still benefited from apartheid, you were still privileged and we're in
JK It's a legitimate proposition, it's a legitimate point of view and it's a legitimate statement. Yes it's true.
POM Do you think that's undermining - ?
JK The question of reconciliation and let's get on with the job? Of course it is. It's no good my saying to Mbeki, you guys, we've now got a problem with law and order, you were the people who raised generations with the belief that they could destroy public buildings and they could defy law and order because it was all for the revolution. I can't say that. It happens to be true but it happens to have been justified in its context and it's no damn good talking about it, now let's get on with the job. I didn't go into the bush, I didn't take up arms. I didn't think that that was my role. No. I did found three great liberation movements to move white public opinion towards settlement, yes, and they played a valuable role. Yes. I think that particularly the Legal Resources Centre and Lawyers for Human Rights played an enormous role in the eighties keeping a little flame of liberty alive and keeping hopes in the minds of reasonable blacks alive and keeping in the forefront of white thinking peoples' minds, "We're on the wrong track, let's get it right." I wasn't the revolutionary and I'm not ashamed of it. Nor for that matter was Mr Mbeki, but be that as it may we all worked our own way. I'm not a liberal, I'm a patriot. That's all.
POM Well it has struck me in the interviews that I have conducted that I have seen very little evidence of reconciliation in the deeper sense of it and too much of a tendency on the part of the ANC that whenever they are criticised to immediately damn you as still somebody who is either saying blacks can't do it, you're ineffective.
JK Many blacks can't do it because they were never given the opportunity to learn to do it.
POM Yes, but you can't say that.
JK Of course I can say it.
POM Well you can but then you'd be called a racist.
JK Yes and I'm saying I now want you to do it. Please, stand back and let you do it worse than I would do it because it's your job not mine. I'm not a racist when I say that. I think I'm a realist.
POM But should more people, more whites let's say, who are in tune with the need for transformation, the need for change, the need for greater equality, for redistribution, when they see a job not being done, done ineffectively or not being done at all, rather than keeping their mouths closed for fear of being called a racist would it be healthier for the country if they stood up and said, listen, everybody should be talking now, that is the essence of a democracy and the ruling party or whatever, government, can't always point to race right away and say you're saying that because you're a white person, and that's where your motivation is coming from which they do increasingly.
JK Of course they do. But, sir, bullshit is bullshit. Whatever the colour of the person speaking, and if a job is not being well done it's not being well done. It doesn't mean that I must stop criticising it because it's a man of a different hue or a woman who hasn't been allowed to grow as an executive and she's now for the first time there and she's inexperienced. Also it doesn't mean that I will go and criticise her in public and castigate her. I will make allowances for her but I'm not going to say she's doing a great job when she isn't. You can't do that. Then there's no growth, there's no reconciliation. Reconciliation means giving and if it's not looking you're not giving, if it's ignoring it's not looking. And I think that the IEC has worked very, very well as a skills transfer body and it's going to work better that way, but if I can make one point, if you want representative democracy to take root, to grow, to flourish, the electoral process must belong to the people, it must go down to the lowest possible level. The local voting station must be run by the local community. It must not be run by a 'babu' class coming in from the nearest provincial head office. That's the way we planned it, that's the way whitey planned it and darkie planned it in the IEC together in order to let the most disadvantaged, the most marginalised, the most disempowered feel that it is their process. It's very easy to run an election and it's cheaper to run an election with government servants that you send from central areas. It doesn't work.
POM When you filed your affidavit
JK The IEC's affidavit.
POM OK. Now this is a crucial point. It's always called 'your' affidavit, that it was you who filed it on your own behalf, without
JK I'm lots of things but a liar I'm not and I'm not stupid, I'm not.
"I, the undersigned JAN CHRISTIAAN KRIEGLER state as follows under oath:
I am the Chairman of the Electoral Commission, IEC, in which capacity I have been cited as the Fourth Respondent in these proceedings. The IEC has authorised me to make and file this affidavit on its behalf."
Do you think I'm an idiot that I would risk my career as a judge of the highest court in the land by putting a falsehood in the second sentence? We debated the affidavit uphill and down dale. It has word changes in that were put in by my colleagues. Let's put it this way instead of that way, it's a little softer.
POM Yet when these allegations, again, in the media have appeared, I haven't seen or heard your colleagues come to your -
JK Go and ask them.
POM publicly say, no, no, no, it wasn't Judge Kriegler's.
JK No-one asked them.
POM But why won't they say it publicly, make a statement saying he did not file that on his own behalf?
JK To the best of my knowledge they did. I've seen the statement in writing. I wasn't there when it was handed out or read out but I've seen it in writing.
POM But it's never been published.
JK I don't believe it hasn't been published. I do believe it has been published but it's not good copy. We have a deplorable journalistic ethic in this country and you know that.
POM They talk about the meeting on, this is just something else I wanted to clear up, a meeting on the 22nd when a number of your colleagues
JK Yes, Friday 22nd.
POM - when the reports give the impression that your colleagues told you they didn't agree with you.
JK It's total, total fiction put out by the Deputy President's office as part of the smear to drive a wedge between me and my colleagues because my resignation confronted him with a real crisis, so he's got to isolate me. That may well be a short term stratagem. It's not going to work because the problem hasn't gone away once you've killed the messenger that brought the bad news. The problem is still there and it has not been addressed.
Let me show you something else which journalists in this country unfortunately don't bother to go to the trouble of reading a long document, it's too much like hard work.
POM A one-pager.
JK Yes no, unfortunately that's what's happened under the influence of television that everybody goes for sound bites now, there's nothing in depth, there's no research done. I said in this affidavit, mark you the National Party's case is that they want an Order saying that the
POM This is from your affidavit?
JK This is the affidavit and I'm responding to an allegation by the NP that the government has deprived the IEC of its administrative independence. I set out the whole story, I set it out, I think balanced, where I deal with the staffing crisis in November:-
"By dint of truly exceptionally hard and skilled efforts the sub-committee managed to muster civil servants. However in many instances it recruited at the eleventh hour, too late to be trained or deployed properly, and in many instances registration points were either not staffed or had to be staffed by reducing the number of officials. We also split the provinces five/four. However some ten million voters were indeed registered, a result not falling far short of the IEC's expectations. At this point I should explain that at all times it planned to conduct the registration in a number of phases. Newspapers have suggested that this was because the government had interfered with us and the NP had suggested that it was a sign of interference (and I'm dealing with that point saying it's not true.)
"On the other hand there were disadvantages to the emergency solution devised by the sub-committee. True enough, the first phase of the registration process was saved but at a substantial price. Most importantly the IEC lost the opportunity to gauge the performance of staff during the first phase to eliminate weak links and to increase the skills of those found to be suitable for attention during the subsequent phases. A crucial feature is that it was fundamental to the IEC's planning of the elections themselves that staff could be tested and trained during the relatively simple undemanding registration phases. In effect the registration phases would be dress rehearsals for the major undertaking, namely the election itself. A subsidiary feature is that it was the SANDF that saved the first phase of the registration from disaster. However, the political parties are agreed, and the IEC emphatically endorses, that it is undesirable to use military personnel in voting stations. Registration is a relatively prosaic administrative exercise. Elections are infinitely more sensitive to perceptions and particularly to perceived influences on the process.
"At the moment the sub-committee and the IEC are engaged in reviewing the successes and failures of the first phase of registration and examining ways of avoiding repetition of the latter (that's the latter). In particular efforts are being concentrated on finding sufficient staff sufficiently early to enable the IEC to train them. Furthermore identification of registration officers is planned to be completed in good time to enable the IEC to gauge their quality and to train them not only in the mechanics of the registration process but in the ethos which the IEC believes should imbue elections and their preliminary activity.
"The likelihood of successfully achieving these objectives cannot be predicted at this stage but should become clear by not later than the middle of January 1999. If necessary leave will be sought at that stage to file a supplementary affidavit to put the up to date facts before the court. I can say at this stage, however, that if sufficient staff is engaged in good time for the IEC to attain the above-mentioned improvements the second phase of voter registration will probably prove successful. Should it transpire during that phase that the IEC cannot attain and maintain operational control over government servants seconded to it as registration staff it will not hesitate to inform government and the public accordingly."
So that, my dear sir, is what I've done. Said it in an Affidavit that was given as a complementary advance copy to the Deputy President on Christmas Eve. I am a curmudgeon maybe but I'm not a crook. I speak consistently. I warned him. I said I would have to put it in an affidavit. If you fuck up my next round of registration, sir, I will tell the public that and that's precisely what they did, excuse my French. We had agreed that we would have every single name for our 72,500 staff members allocated to voting stations by name, by rank and by contact phone number by the 15th January giving us a fortnight before we start on the 29th. Two weeks clear to get our people, to look at them, to arrange for them to come to training sessions, to vet them, to give them a little pep talk, to train them on the use of the equipment, the lot. When we went to cabinet on 22nd January, a week later, and we went there with our local electoral officers having said, "For God's sake move, we're heading for the same disaster as last time where we're going to get people at the last minute and we don't know who they are and we don't know where they come from and we don't know whom to blame if something goes wrong or to praise if something goes right." It wasn't us spontaneously, it's the LEO's around the country that said, "For God's sake!" We of course understood that. We had been talking, we'd been looking for a meeting with the Deputy President from Tuesday of that week. Eventually we get to see them on Friday afternoon at which stage the effort to raise staff had reached a debatable figure of the order of 50,000 - 50,000 out of 72,500 a week after they should all have been there! And what happened on the Friday? The same cock-up as before. Hundreds of stations that didn't open. We didn't know that they hadn't opened, we didn't know who the people were who were going to be there. We couldn't phone and say, "Fred, all systems go. Do we see you at the voting station?" Me, I've got to schlep around the eastern suburbs of Johannesburg and go down to Orange Farm on Friday desperately trying to find out which stations aren't functioning. And who gets it in the neck because the thing is a cock-up and what gets discredited? The electoral process.
POM So, again, because in a way I see this whole thing as being emblematic of larger unresolved problems in the society, it's like a microcosm of many, many other problems that exist in different areas that don't receive the same attention but are there and have to be resolved at some point if the country is to move beyond this kind of state of, I won't say, suspended I don't know what the right phrase is but you know what I mean.
JK We've got a bit of wheel slippage on the track, we've lost a bit of traction.
POM Yes. Again, this notion fed you've addressed it but there has been a consistent attempt now that has emerged since, I would say, late last week to try to drive a wedge between you and your fellow commissioners, particularly between you and the black commissioners and to say that you were the one who was out of step, that they were more sensitive to government needs to cut back expenditure. There's a quotation from Professor Mchunu being asked by the Deputy President did he have enough money to conduct the elections this year and he is saying, "I've enough, I don't need any more. I've got the R550 million and it will do", of Mbeki saying, "If you need more money from me you will not have to twist my arm to get it."
JK That's just untrue of course, just plain untrue. We left the meeting with a flea in our respective ears and not a cent.
POM Did Mchunu in January - ?
JK Of course, he was there with us.
POM But did he go and say to the Deputy President or to Home Affairs or whomever that the budget was sufficient to carry out the election, the R550 million?
JK Of course he didn't. He could never say it. He hasn't got the authority to say it for one, and for two he wouldn't say it because it's untrue. He never said it and he wouldn't say it. He wouldn't dream of saying a thing like that without checking it out with me.
POM So in a way there's a second aspect to this and that is that there is a massive, what would in America be called 'spin', being put on it by the government to discredit you.
JK Deliberate disinformation.
POM And to use well tested means.
JK But it's not going to work because the problem is not going to go away. I've gone away but the problem won't go away unfortunately.
POM In your estimation now how many people are without bar-coded IDs?
JK I have no idea.
POM Well the HSRC said five million.
JK They said between 5.3 and 5.9 million. An ANC advert over the weekend said the same. Yes, it was repudiated shortly afterwards. It was very amusing. It was the very figure that they used. In a big advert: "There are so many that haven't got come all and register. Apply for your ID books quickly." I don't know what the figure is. Let's go back to square one. The overall population figure is
POM It's been upped by two and a half to three.
JK And that's still being challenged, queried. I don't challenge or query it, I accept that Mark Orkin and his team did a good job, ultimately they know what they're doing and I think that the figure they came up with is a reliable figure. The figure for how many of those are of 18 years and older and how many are citizens is slightly more problematic but I'm once again prepared to accept it's somewhere between 23 ½ and 25 million is the figure that you're looking at. When you get to the third variable, namely how many of them have got the requisite kind of document which would enable them to vote if they would wish to do so, that's where you get into murky water. The HSRC, that's the most authoritative body that I know of in the country, commissioned an extensive survey, an enormous survey, I think it's the biggest survey done in this country, 23 27,000 interviews that they held all over the country, which is massive. It cost a lot of money and they came up with a figure between 5.3 and 5.9 million. Home Affairs says nonsense. One lot is the authoritative issuer of documents and the keeper of the national population register, presumably the most authoritative source of knowledge of this kind in government, and the HSRC which is a parastatal which is the most authoritative research and public survey body, says the other thing. Leave me alone, I don't know. But what I do say as an electoral administrator, what we as the IEC say, is please don't leave us in the middle, don't go for a document which is risky because never mind it being challenged by political parties, what happens come election day and there are tens of thousands of people who arrive at voting stations and say, "Wir wollen winnen(?)" which they're entitled to do. It's our country, we're liberated. You're doing the same thing as Verwoerd used to do, you bastards. Why can't we vote in our country? Let's not run that risk.
Maybe HSRC is right and Home Affairs is wrong. That's what we said at the time, that's what we said in parliament, that's what we said in the National Council of Provinces, that's what we said publicly. Now all of a sudden come December I'm going to go to the President quietly and tell him these boys are talking nonsense? The mere fact that five million people may be jeopardised is in itself a strong argument for saying the document is no damn good, you can't cut out 25% of your electorate. I say it from an electoral administration point of view. If you say it from a constitutional point of view a measure that you introduce less than a year before the election, ten years after the legislation was introduced and you say then, 12 years incidentally, you say then, no, you need another document. This smacks of Kafka. You remember, you need a pass and then you arrive with a kind of pass and then, no, sorry it's the wrong document. Well where do I get a document? Such-and-such a place. Well you go and they say, no, you must go and get another document. I don't think it's good constitutionally, I think it's constitutionally highly questionable. And the Deputy President tells the world that I've misled him and I can't imagine for what reason I would do it. What motive could I have for lying to him then or now? What am I up to? Some devious komplot hatched by the third force? After all I am an Afrikaner and you can never trust these bastards. If that's not underlying it I don't know what is, except that maybe I'm mentally deficient, lost my bananas.
POM When you made your original statement, I saw the press conference and you made your statement even though it was a brief statement, and you said no matter how skilled your journalists are out there I'm not going to elaborate, I have said what I have said. Then the government says - and then you talked to and you all agreed that the thing should not be blown out of proportion, that you resigned and you made that clear when you were in fact talking on TV that night. You went to great lengths to say the process doesn't depend upon one person. There's a credible process there, the commissioners know what they're doing and there will be elections, credible elections, and if I didn't think there were I would not have resigned in the first place. And then the government says, well after you saying that you then began to give a series of interviews.
JK It's not true.
POM Kind of more pointing the finger at government, hampering the independence of the commission and then they felt it necessary to release the correspondence between you.
JK Reluctantly. They were very reluctant.
POM Do you find the release of that correspondence a breach of official protocol?
JK Of course. I don't write confidential correspondence to people to have it published without my consent. And I told Mjonka Gumbe that. I said I don't think it's in your boss's interest, I don't think it's in the national interest, I don't think it's in my interest, but in any event I think it's improper to issue correspondence that was intended to be confidential.
POM So they told you before they were going to release it?
JK She asked me, she said she was under pressure from the Freedom Front to release the correspondence and I said, nonsense, you don't get forced by a political party to do that, it's rubbish. In any event I don't think it's in the interests - I knew all along that they wanted to publish it. That's why the letter was written as it was. Five pages, to what end? To what end? Unless he thought that I was going bump him because that's the trust he has in me. At the request of the CEO and at the special arrangement of the Press Officer of the IEC I said I would see Miss Russell here.
POM Miss Russell is?
JK Of The Star, in order to explain that the suggestion that there was some devious government plot to undermine the election was untrue. We met here on the Tuesday after the press conference was on the Monday. I think it was on the Wednesday and I explained to her in detail this whole issue that I've had about it's difficult for people to understand where this animal fits into the overall pattern of things. She said to me, "Are you saying that government was opposed to that?" I said, "You cannot talk of government as something monolithic and of one mind, there are differences of opinion. There certainly are within government those who think that the Electoral Commission is something like the Meat Control Board." But that is certainly not as far as I am concerned government's view. That is not the way she publishes it. I saw her last night at the press interview, I told her that she had done me a grave disservice which I could forgive her, but she had done the country a great disservice, I couldn't forgive her.
POM That was the quotation that you said - ?
JK That government regards it as a Meat Board. Yes. And that's what Mbeki has used as a peg on which to hang the publication of the correspondence. But long before that letter was published and long before Miss Russell had published her report, Mjonka was having off the record briefings of journalists. I know that, they told me that, I've got friends there. She was telling them that I was a Broederbond member and it had actually been revealed at the time recently when they were talking about the Judge Presidency of the Transvaal. That's what she gives as background. I'm not a babe in arms. If they want to play it that way they must play it that way but they must solve the basic problem. Downing me won't make it go away and they've got real problems. They've got to get another judge.
POM There will be a third round of it's going to be open, unless it's settled out of court it's going to be open-ended.
JK They're not going to settle. They've now said they're not going to settle. They've now dug their heels in. It's all very well them digging their heels in. They mustn't dig in their heels at the cost of my grandchildren. That's what's happening. The electoral process is being jeopardised by hubris, by pride. That's what I was trying to prevent when I went to see the Deputy President in private. But that's where we are now and I could see it working perfectly easily, the government saying we still think that a bar-coded ID is necessary but the minority parties are trying to make cheap political capital out of it and they're trying to delay the electoral process because they know they're going to get a clobbering at the polls, we will meet them at the polls with any ID book that they want. We will amend the statute in February, the first week of parliament. I think it would have been a coup de mer but it was not to be. I'm not a politician, maybe it wouldn't have worked.
POM Some people have suggested to me on the bar-coding issue that it's not about the election at all but it's about the necessity for the government, for everybody to have a standardised identification to eliminate welfare cheats.
JK Don't talk nonsense to me, please sir. They've got the Identification Act to do that. It's on the statute book, it was put into operation on 1st August 1998, less than two months before the Electoral Act was adopted and the 1997 Act which came into operation in 1998, the Identification Act, says any one of the old books is kosher. Now why on God's earth go and try to squeeze people to get legitimate books, not in the statute that deals with ID books, but in a different statute? Please, it doesn't stand up to a second's scrutiny. In any event Mjonka Gumbe sat there and said what has now been revealed by Valli Moosa to have been the ANC's reasoning. For many, many years South Africa had discriminatory ID books, you had a book that categorised you as one or other racial group and because of the system of apartheid it wasn't separate but it was separate and unequal. You had a dompas as a black or you had a black book as a coloured. In any event, comes 1986 for the first time ever
POM You were saying in 1986 they brought in ?
JK The green bar-coded ID book which was racially colour blind, any South African could apply for it which meant of course that people in Bophuthatswana, Venda and suchlike couldn't because they were presumed, under the weird South African legislation of the time, to be citizens of foreign countries. But anybody resident in South Africa could apply for a green ID book and millions and millions of blacks did so to get rid of the discriminatory, insulting, demeaning dompas of the past. But the overwhelming majority of whites, coloureds and Indians who by then already had ID books were perfectly happy with the ID books they had, they didn't have to get new ones and the statute didn't oblige you to get a new one. The result was that there was over a period of several years a large increase in the number of Africans who carried the green bar-coded ID book and the youngsters of all races who turned 16 thereafter who applied for ID books got the new one, but the older generation of the three racial categories who qualified for proper ID books in the past didn't apply, they had no reason to do so. Those in the homelands, in the former homelands, had TBVC ID books, they couldn't get green ID books and they didn't apply for them. Then once the logjam was broken in 1993/94 and particularly after the new dispensation came in in 1994 many, many people in TBVC countries then applied for green bar-coded ID books, particularly those who wanted pensions and hand-outs from government of some kind or another because particularly from 1995 onwards the government started putting on the screws, Department of Pensions, Department of Public Health, Department of Education if you wanted bursaries for kids, you wanted admission to tertiary institutions, you needed to get yourself a new kosher bar-coded ID books. But if you fell in a different category you didn't bother, (a) because you were a middle-aged white, coloured or Indian because you had a perfectly good one and you weren't going to apply for a matric certificate or to get into university, nor were the overwhelming majority of cases going to ask for a hand-out from government for a pension of some kind or a building loan, which is because of the realities of our past largely Africans who need that kind of assistance, and if you were the particularly marginalised rural youngsters you wouldn't bother either because you never would apply for a tertiary education, in fact you were totally illiterate anyway and you voted solidly IFP or UDM.
So there were two categories and they're up on the map, we plotted them by district and the maps were published. You could see it for yourself. Superimpose on that your projected voting pattern and you could see in the Western Cape the NP heartland area was the lowest, 42%, in the northern suburbs of the Cape. Northern Cape was, I think, 58% had green bar-coded ID books. Those are strong Nationalist areas and DP areas. You then go into East Griqualand and the UDM area and you go into the KZN remotest rural areas and that's where you see the colour patterns coming out again. I'm not a racist when I say that that's the way it is but Mjonka says, "We will teach the whites who were never prepared to become South Africans. They will now be obliged to go and apply for an ID book like anybody else and give their fingerprints. We will teach them a lesson." I said, "Mjonka, you put that on affidavit, you prove the DP's case." You can't do that, she's a lawyer like me. You cannot use a statute that's aimed at ensuring the franchise for everybody and purity of the electoral process as a lever to force a particular minority grouping to apply for identity documents to teach them a lesson. You can't do that, it's a clear case of abuse of power quite apart from being unconstitutional in that you're depriving people of their inalienable right to vote and you're doing so on a discriminatory basis in breach of Section 9. So you're proving the DP's case. Me, I'm the guy who went to the Deputy President and said they're talking nonsense. It's a lie either in his mouth or in Mjonka's mouth. That's the five minutes.
POM Thanks very much.
JK I'm sorry I get passionate about it.
POM Well I'm glad you do.
JK I speak too much.
POM It's refreshing to hear people speak with passion rather than dismissive of what's going on. Why do you think the Deputy President strikes me as very intelligent, astute, shrewd politician, why would he let a situation like this develop?
JK I can't answer that. I don't know. I can speculate, can speculate that however skilled he is in state-craft he is still not sure of the handling of power. I'm not sure that if I were in his shoes I would not also be unsure about the wielding of power and the retention of power as much as possible in where I can control it, because if I can control it I can trust. That's speculation. I don't think the idea that the Electoral Commission is there to ensure that the ANC is honest is a comfortable feeling, certainly not for populist politicians and certainly not for those who are endued with the fire of the revolution. What's this break on the leg of progress towards the new uplands and all of the slogans that you want to create for yourself. But I think that's what the constitution says and wisely says. I seem to recall the Romans having said something about you need a watchdog to watch the watchdog.
POM On that 30 second bite we will conclude. Thanks ever so much.