Blixen’s Difference: Horizontal Application of Fundamental Rights and the Resistance to Neocolonialism



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2. Neocolonialism in Post-Apartheid South Africa

The link between colonialism and feudalism invoked above would imply that neo-colonialism should also be considered to establish a neo-feudalism. This is indeed my argument in what follows. The principal role players in today’s global economy, huge multinational companies, have gained sufficient power to impact incisively on the efforts of national governments to govern their states in terms of local public interest. The trans-national mobility of big business has a marked effect on the political will of national governments as far as issues such as tax and labour legislation are concerned. Governments are today constantly subject to the need to compete with other governments to retain the favour of the big companies that drive their economies. That this is so is common knowledge and need not be argued extensively. However, I would like to give a specific edge to my argument by relating a number of events that I find most significant in this regard. In December 1999, Edzard Reuter, former managing director of Daimler-Benz, wrote the following in the German weekly newspaper Die Zeit:


‘I ask myself, whether economics and politics have not in the meantime exchanged their traditional roles. Much more drastically than I would venture to do, wrote Günther Grass recently in Die Zeit: No longer the elected government, no chancellor determines the guidelines of politics today. In their place govern without legitimation the directors of merged and globally subliminal economic power: … What is the paper worth on which our constitution is written when it is daily scorned, accompanied by threats ‘or the government heeds our demands, or we move to a different location’. Strong tobacco. Can we nevertheless not, at least in the Federal Republic, but also in other western countries, discern daily how quickly governments give in when they are put under pressure by the representatives of commercial organisations, pace setting moguls of specific branches of business or a number of important big enterprises? Do not in fact many indications speak for the reality that the primacy of politics is under threat?’ (Die Zeit, 9 December 1999, p 3, trans).
Now, if this can be said so forcefully of the already developed countries of the West, how much more would countries that are desperately in need of economic development be subject to the demands and ultimatums of a mobile global economy? This again seems to speak for itself, but let us bring Daimler into the picture again, this time no longer as Daimler-Benz, but as Daimler-Chrysler. The National Union of Metal-Workers of South Africa initiated a strike in the South African motor industry in August 2001. The strike was legal. It complied with the requirements of South African labour legislation. Employers in the motor industry were therefore legally required to renegotiate new remuneration packages with the workers and submit the matter to arbitration should they ultimately fail to reach an agreement with the union. After a week, however, Daimler-Chrysler simply threatened to pull out of South Africa, a move that would have cost hundreds of jobs in a country where unemployment already affects close to 50 percent of the workforce. Daimler-Chrysler spokesperson Annelise van der Laan was quoted by the Johannesburg daily newspaper The Star to have said: ‘Moving the production overseas is definitely a consideration if the strike does not cease soon.’ (The Star, 14 August 2001, p 1.) I wish to argue that this threat to take one’s business somewhere else if a strike does not end soon constitutes a drastic curtailment of the fundamental right to collective bargaining guaranteed by section 23 of the South African Constitution6. The question is how to subject this curtailment to constitutional review in order to establish whether it is disproportional, to establish whether it constitutes not only a limitation, but also a violation of the right to collective bargaining.
Allow me to let the plot thicken. The South African Government entered an agreement with international arms manufacturers The European Aeronautics Defence and Space Company to buy arms for an amount in excess of ZAR 50 billion (USD 4 billion). The arms deal has been criticised severely for being unnecessary and devoid of reason. South Africa currently faces no military threat and there is no arguably potential military threat that justifies a huge expenditure on armament at the moment, especially if the social and developmental crises faced by the government (among them an officially denied but undeniably rampant AIDS epidemic) are taken into consideration. The South African branch of the activist group ‘Economists Allied for Arms Reduction’ has in fact filed an application in the Cape High Court on Wednesday, 21 November 2001 that the arms deal be scrapped. The group claims, among other things, that the government had acted irrationally and unconstitutionally in deciding to go ahead with the arms deal and thus failed to heed the plight of poverty stricken South Africans, as it is required to do by the South African constitution. (Ellis, 2001, p 1) I shall return to this application below. Suffice it to say for now that South Africa seems to have fallen prey to the scourge of excessive military and armament expenditure that is so characteristic of undeveloped countries and which in Africa has given rise to seemingly endless warfare. Consider in this regard Helmut Schmidt’s chilling observation that developing countries spend on average six times the amount of money that they receive in the form of development aid on military goals (Schmidt, 1999). Schmidt mentions the United States, former Soviet Union States and Germany itself as the major suppliers of military goods and armaments today7. So it appears that what is ostentatiously given as development aid with the one hand is most often amply taken back by the other in the form of revenue earned from selling destructive weaponry.
Let us return to some details of the South African arms deal. The deal has all along been accompanied by allegations of corruption in the form of personal benefits received by government officials involved in negotiating the deal. One of these officials, the ANC chief whip Tony Yengeni, was eventually arrested and charged with corruption with regard to his involvement in the deal. Yengeni had bought an expensive four by four vehicle at an astounding discount through the very company with whom the arms deal was negotiated, namely, the already mentioned German company The European Aeronautics Defence and Space Company. The four by four vehicle that Yengeni bought was a Mercedes Benz. Asked why he bought a car from an arms supplying company instead of a car company, he answered: ‘the two companies were one with two names’:
‘So when I met Michael Woerfel [the suspended managing director of the European Aeronautics Defence and Space Company], it made sense for me to say I wanted a car and could he assist me. He said of course. I did not see anything wrong. I really didn’t. The car that came, I liked it. He said it would do me good to drive a Mercedes Benz. I agreed’ (The Sunday Independent, 7 October 2001, p 1).
Daimler-Benz or Daimler-Chrysler, Mercedes in any case, all over the place. We can of course not simply take it from Yengeni that Daimler-Chrysler and the European Aeronautics Defence and Space Company constitute one company with two names. Suffice it to simply say that a co-operative network of two huge foreign business concerns seems to have been playing ball in South African politics as they saw fit. When they do not like the labour legislation, they threaten to go and build their Mercedes Benzes elsewhere. When they are required to facilitate an arms deal, they provide Mercedes Benzes at discount prices. Who exactly carried the discount of Yengeni’s Mercedes is of course difficult to say. Suffice it to say again that a co-operation of economic forces was involved to which the moral exigencies of South African politics are patently of secondary if any concern. An official government investigation into the arms deal has in the meantime found that only two government officials had ‘conflicting interests’ in the arms deal and that the deal as such was not voidable on account of corruption. However, the question regarding the reasonableness of the deal as such still remains to be answered.
The Minister of Defence, Mosiuoa Lekota, has defended the arms deal, saying: ‘being part of the international world placed obligations on South Africa to help in peace missions when requested to do so.’ ‘For that, the country had to have proper armaments.’ (Moya, 2001, p 5) We shall have to see how this argument stands up in court or what other arguments are going to be raised in response to the court application that the deal be scrapped. In response to Lekota’s justification, one should ask whether the international community really expects a national government to neglect its most immediate duty of creating internal stability and doing everything in its power to provide a minimum level of material security to all its citizens in order to comply with the rather vague and remote notion of a peace-keeping duty the country owes the international community. If it is to be believed that we owe military service in the event of conflict in which we are not a party ourselves even if this should mean the neglect of our own national interests, then we play into the hands of an even starker international feudalism than may have been contemplated.
I shall return to the arms deal in Part Four to argue that the government’s own conduct in connection with the deal should be deemed to constitute a feudal privatisation of the political. Let me first go back to the question why the horizontal application of fundamental rights should be understood in terms of a resistance against feudalism.

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