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Viewpoint by Naledi Pandor

LEGITIMATE STUDENT DEMANDS MUST NOT DETRACT FROM LAUDABLE RECORD OF HIGHER EDUCATION SUCCESSES IN DEMOCRATIC SOUTH AFRICA BY NALEDI PANDOR

The recent student struggle has resulted in the no-increment to student fees in 2016 decision announced by President Zuma on 23 October 2015. The ANC sub-committee on education congratulates the students and the ANC government.

Viewpoint by Malusi Gigaba

INDEED FEES MUST FALL BY MALUSI GIGABA

Over the past few weeks, starting at Wits University and spreading like wild fire to other universities across the country, SA students have been locked into a bitter struggle against their universities over exorbitant, above-inflation and unreasonable fee increases.

Viewpoint by Krish Naidoo

POLITICS WILL ALWAYS BE PART OF THE INTERNATIONAL CRIMINAL COURT`S FUNCTIONING BY KRISH NAIDOO

It should be said at the outset that the establishment of an International Criminal Court was no easy feat. Efforts to do so date back to the intended prosecution of the German Kaizer at the end of the First World War.

GOOD STORY TO TELL

 

VIEWPOINT BY NALEDI PANDOR

Legitimate student demands must not detract from laudable record of higher education successes in democratic South Africa

Comrade Naledi Pandor is a member of the ANC NEC and Chairperson of the ANC NEC Sub-Committee on Education and Health

The recent student struggle has resulted in the no-increment to student fees in 2016 decision announced by President Zuma on 23 October 2015. The ANC sub-committee on education congratulates the students and the ANC government.

The ANC conferences in Polokwane and Mangaung resolved that steps be taken towards free higher education for the poor. This is an objective we continue to pursue. We support the decisions taken by Minister Nzimande to convert NSFAS loans to full bursary on graduation.

At the NGC this year we decided that a framework for regulating university fees be developed by the Department of Higher Education and Training (DHET). The student protest demands reflect agreed ANC policies.

While we acknowledge the very legitimate demands of the students, we believe it`s vital also to acknowledge the significant changes achieved in higher education since 1994.

The freedom charter declared: "The doors of learning and culture shall be opened". Those doors had been closed to blacks but also to girls and women. The Freedom Charter declared, "Education shall be free, compulsory, universal and equal for all children; Higher education and technical training shall be opened to all by means of state allowances and scholarships awarded on the basis of merit".

Widening access to education has been one of the key policy thrusts of education reform since 1994 and we have widened access and opportunity to young women whose parents were excluded by decades of racial and gender discrimination.

We have broken decisively with the exclusive education system of the past and created an inclusive education system for the future. We did not prioritise school education over university education as other newly independent african countries did or were forced to do. We transformed both sectors.

Today, new opportunities are available to girls and women. In fact, we have achieved a general level of gender equality that has only been accomplished in other countries after many decades of democracy. Our success in this aspect of social change has been supported by a progressive Constitution and a strong and visible advocacy for gender equality.

We have increased and expanded participation in higher education. There has been a huge expansion in the number of women studying in higher education. And there has been a welcome internationalisation of the student body, with over 80,000 international students at our universities.

We have established a national quality assurance framework and infrastructure and each university is now subject to a quality audit, which has significantly raised quality issues across the sector.

We have begun the process of transforming our universities from insular institutions to open institutions for all. The aim of the merger process - mandated in 2002 - was to break up the division between black and white institutions, to improve quality through economies of scale, and to improve staff-student ratios.

Yet transformation is an ongoing process and we need to plan ahead. A strong case must be made for more diverse higher education institutional types that are able to meet appropriate quality benchmarks and satisfy particular labour markets. If we are to continue to support research-intensive universities, we must look towards new and innovative partnerships to realise our vision.

It`s government`s role to invest in, to promote, and to catalyse science and innovation in South Africa. Government acts as a catalyst for innovation in national priority areas. We chose in 2008 five specific areas (we called them "grand challenge" areas) in which we aimed to catalyse leading-edge innovation: global change, renewable energy, space science, the bio-economy, and the human sciences.

These are not simply grand challenges. They are global challenges that need global collaboration and cooperation in solving. Government`s role is to catalyse investment in key multi-disciplinary areas that will drive innovation in all sciences. Nano-technology is a key example, as its impact is felt in widely disparate fields, from medicine to electronics to IT.

South Africa, in partnership with several other African countries, recently made history when we secured the right to co-host the Square Kilometre Array (SKA) global radio telescope. The bid, supported by South Africa`s construction of the exciting MeerKAT telescope, a precursor for the SKA, and several human capital development programmes, has contributed immensely to raising interest in science, technology and engineering across Africa.

As a result of our focus on astronomy, partnerships with multinational companies related to information and communication technology engineering required for radio astronomy are thriving, with African expertise becoming a sought-after source of innovation for these companies. Government is committed to increasing African expertise in science and technology.

The Department of Higher Education and Training (DHET) funding for universities has increased threefold over the last ten years - from R9,8 billion in 2004/05, when the existing funding framework was introduced, to R30,4 billion in 2015/16. For universities DHET funding is supplemented by tuition fees and third-stream or donation/endowment income. Government has prioritised bursaries for both university (R4,1 billion) and college (R2,2 billion) students this year. Third-stream income flows more easily to traditional research-intensive universities than to the newly transformed universities of technology.

Significant additional investment (the Department of Science and Technology budget increased from R2 billion in 2005/6 to R7,4 billion in 2015/16) is required in both human development and research infrastructure at universities both to improve the productivity of the system and to support the development of research capacity at formerly black universities and universities of technology. Continued investment is aimed at attracting and retaining the best minds to undertake cutting-edge research in such areas as astronomy (SALT and SKA) and paleosciences, while also helping to solve some of the country`s problems such as the pursuit of clean energy or reducing the burden of disease (HIV or TB).

Despite these changes, there are long-standing transformation challenges that the ANC believes require urgent action. This includes transforming the academic body and leadership in higher education, and addressing language exclusion racism.

Many first-year students struggle to adjust to academic language demands and to cope with the high-level demand of independent research and self-directed learning. Few schools alert learners to the changed learning context of university, and for many first years university is a deep shock. This means universities must do more to orient first time entering students to the different learning and teaching context of university. At schools teachers devote a lot of time to pastoral care. University lectures do not regard such support as their responsibility. Students can become anonymous failures, unrecognised, unseen and deeply troubled.

Universities need to acknowledge and provide for increasing numbers of first-generation entrants who do not have the cultural capital that ease entry to these institutions for more fortunate students. It is also a known fact that despite the triple mandate of teaching, research and community outreach many lecturers do not have any training in pedagogy and often regard students as an irritant. The students have changed, but many of the lecturers remain the same. Part of our response to this aspect has been to support academic development programmes and foundation programmes in disciplines that have been prioritised by institutions.

The Constitution of South Africa sets out our aspirations for the character of our nation. It mandates us to build a non-racial, non-sexist democratic society founded on equality, human dignity, and mutual respect. These values are absent in many of our educational institutions. Girls are often victims of sexual violence or abuse at home, in our schools and in some instances on our campuses. Our educational institutions (schools, colleges and universities) must do more to address racism, sexism and other forms of discrimination. Students and staff should know that when they enter our universities and schools they enter places where principles and values exits in mission statements and in practice and that authorities will act strongly if there is a breach.

Employers complain about the language competence of our graduates, and refer to a poor work ethic and to the absence of analytical skills. Our institutions should do more to back graduates and their experience of life beyond higher education. We also need to see increased attention to modernising our university curricula. All students should have a working knowledge of at least one of the indigenous language of South Africa. They should also learn one or more modern languages and get an introduction to African history and civilisation.

In conclusion, in the short term the ANC expects Minister Nzimande to present a proposal for regulating fee increases, a medium-term plan for fee-free higher education for poor and lower-middle-class students, and a partnership agreement between higher education, the private sector, and universities to address student funding and transformation. We congratulate the ANC on the great progress made since 1994 and repeat our belief that only the ANC has the commitment to do even more.

Viewpoint by Malusi Gigaba

VIEWPOINT: MALUSI GIGABA

Comrade Malusi Gigaba is a member of the ANC NEC and Minister of Home Affairs

 

Indeed fees must fall

Over the past few weeks, starting at Wits University and spreading like wild fire to other universities across the country, SA students have been locked into a bitter struggle against their universities over exorbitant, above-inflation and unreasonable fee increases. University councils and administrations hide behind institutional autonomy both to swindle parents and students through unregulated fee increases as well as to reject government intervention to regulate the fees across the board in order to make higher education both affordable and accessible.

What seemed to be protest action involving students from historically-white universities has caught the attention of the whole country, and even the international community, and earned the students the sympathy of the nation. The ANC Secretary General, Gwede Mantashe, has described the students demands as “reasonable and understandable”, and I would add, justified!

While others have opportunistically rushed to shift the blame for these protests to the doorsteps of the ANC and government, the majority of the students have been very clear that such must be placed right before their councils and administrations. To raise the fees in October just before exams, when the students attention is turned towards this all-important period, seems like a con-attempt to trick the students unwittingly to accept increments.

However, two quick reminders must be made in this regard. Exorbitant fee increments have been the order of the day in historically-black universities since time immemorial. Students at these universities are reeling under the heavy pressure of these fees and plunged into the whirlpool of debt that ties them for the unforeseeable future, which makes it impossible for them either to complete their studies or, if they do, to escape the debt trap and the vicious cycle of inequality which will, inevitably, tie their own off-springs.

Secondly, at these historically-black universities, fees are increased during this period and this has been the case since time immemorial. I remember when we embarked on a university shut-down at the University of Durban-Westville (now UKZN) in 1993 just days before exams precisely for similar reasons. What gave us a breakthrough was an agreement reached between the SRC and the university administration that there would be no increment on the registration fees, which enabled us to convince the students to suspend the protest action, sit for the exams and thus resume our protest action soon after registration the following year.

However, this year, students have unequivocally said – NOT THIS TIME! Not this time!

The fact is that we have not been paying attention to the astronomical rise in the university fees and we have been blackmailed by universities through institutional autonomy. We have doubled university admissions / access and more than trebled the NSFAS, but NSFAS has been bludgeoned by poor administration, weak funding formula, exclusion of the children of middle-class parents who nonetheless cannot afford university fees (such as teachers and other middle-level public servants on the grounds that they earn an income), corruption and a large part of the NSFAS funding pays salaries and other administration cost.

This has blurred even these massive achievements whilst the situation of the youth has been deteriorating. Many of these youth are compelled to quit their studies because of inability to afford university fees. SASCO had every year during the mid-nineties led national campaigns against financial exclusions.

At the same time, those who complete their studies are plunged into a socially-internecine debt trap they cannot escape for years after completion of their studies. Years of study are expected by society, families and students themselves to be an escape route from poverty and a licence to a better life. Unfortunately this is not so in our case. Whether you are financially-excluded or still complete your studies, debt awaits you.

When many black students complete their studies, they are expected to begin immediately to take care of their families, assist in the education of their younger siblings and still begin constructing their own future. Usually, it is their future that takes a back seat as they have urgent family legacy issues to take care of, otherwise their own conscience will never grant them peace. The vicious cycle of inequality is thus perpetuated and will surely affect future generations which are the off-springs of the debt-ridden generations.

What compounds this situation is the high levels of unemployment among black young people, meaning that even when you complete your studies, saddled with enormous study debts, you still have a few years of unemployment and a debt whose repayment awaits you nonetheless.

All these factors highlight the battering that black students in particular are facing and underscore the class and racial dynamics of the protest action sweeping our country. This is a legacy of apartheid-colonialism, and particularly of the system of white monopoly capitalism which has continued untrammelled during the past few years. It highlights the urgent challenges of our situation to answer the question, what exactly do we mean when we talk of racial socio-economic transformation! This urgent task of the second phase of the transformation cannot continue to be treated casually as a rhetorical academic exercise, itself an opium of the masses.

Education, and particularly higher and further education and training must feature prominently in that discourse. Students are demanding that the nation views and treats their education as an investment instead of a mere “expenditure”. To this, we must provide an unequivocal, bold and resolute response.

Certainly, the demand for no fee increments is reasonable, understandable and justified. We must support the call for a moratorium on fee increments for 2016 until a permanent and more sustainable funding solution for universities is found.

This is no populist call nor is this the time for populist and opportunistic calls.

Of course, there are those who see in these protests the opportunity to score political goals, but yet live comfortably with monopoly capital whose interests they happily serve.

Measures to fund university education must be found, and white monopoly capital cannot hide behind political opportunism and their hatred for this dispensation in order to shirk or run away from their responsibility. A wealth tax must be seriously considered. There come times in the evolution of societies when sacrifices and solidarity actions must be taken to advance the interests of society as a whole. For South Africa, that time is now.

Students would have fought and sacrificed in vain if something more tangible, radical and bold is not done to give effect to their ideals and resolution.

Viewpoint by Malusi Gigaba

VIEWPOINT: KRISH NAIDOO

Comrade Krish Naidoo is a member of the ANC Legal Research Group

 

Politics will always be part of the International Criminal Court`s functioning

It should be said at the outset that the establishment of an International Criminal Court was no easy feat. Efforts to do so date back to the intended prosecution of the German Kaizer at the end of the First World War. In 1937, the Convention for the Prevention and Punishment of Terrorism and the Convention for the creation of an International Criminal Court were drafted by the League of Nations but neither ever came into force. Consequently, the ANC applauded the establishment of the ICC in 2002 as a step in the right direction in the search for international peace, justice and security.

By way of background, South Africa signed and ratified the Rome Statute in July 1998 and subsequently domesticated the obligations in the Rome Statute into South African law by passing the Implementation of the Rome Statute of the International Criminal Court Act, 27 of 2002.

The ICC acts in a complementary relationship with domestic states that are party to the Rome Statute. The principle of complementarity ensures that the ICC operates as a buttress in support of the criminal justice systems of States Parties at a national level and as part of a broader system of international criminal justice.

In terms of the Rome Statute, State parties are legally obliged to comply with the court such as arresting and transferring indicted persons or providing access to evidence or witnesses. It is only where a State Party is unwilling or unable to investigate and prosecute international crimes committed by its nationals or on its territory, that the ICC is then seized with jurisdiction.

From inception, the ICC was dogged by the challenge of universal jurisdiction. Major countries such as the United States, Russia, China and India did not ratify the Rome Statute and join the ICC. The Peoples Republic of China opposed the ICC on the basis that it goes against the sovereignty of nation-states and the court may be open to political influence. India objected to the broad definition given to crimes against humanity. The United States did not trust the neutrality of the Party States to deal with its nationals in a fair manner.

When the ICC was established, many commentators were of the view that the Palestine/Israeli situation could present a major challenge. This scenario is fast becoming a reality after the ICC admitted the Palestinian Authority as a member in April this year. So contentious is the situation that the United States and Israel not only challenged the ICC for admitting a non-State member, but the United States went further and threatened that it would withdraw its financial support for the Palestinian Authority - estimated to be $400m per annum - if Palestine instituted war crime allegations against Israel.

The Al-Bashir situation is just as contentious. Before the North Gauteng High Court ruling in June this year, there were seven cases of non-cooperation by African States to arrest President Al-Bashir.

On 4 March 2009 the ICC issued a warrant of arrest for Omar Al-Bashir for war crimes and crimes against humanity. In the same month the Organisation of Islamic Conference labelled the ICC’s pursuit of Al-Bashir as ‘void and lacking sound reasoning’ and suggested that the ICC activities were a threat to the sovereignty, independence and territorial integrity of Sudan.

On 3 July 2009 the African Union put forward a proposal that all member states should withdraw from the ICC or refuse to co-operate on the Al-Bashir indictment.

On 12 July 2010 the ICC issued a second warrant for Al-Bashir’s arrest for genocide.

At the ICC’s First Review Conference in 2010, Malawi, speaking in its capacity as the Chair of the African Union, stated that in terms of Article 98(1) of the Rome Statute, the indictment of Heads of State could jeopardise Africa’s co-operation with the ICC. In 2012 the African Union stated publicly that Article 98(1) of the Rome Statute provided immunity to Al-Bashir.

These decisions placed African states in the unenviable position of having to choose between their obligations as member states of the African Union, on the one hand, and their obligations as States party to the Rome Statute on the other. It also raised a number of critical questions about the direction of international law and international law-making from both a normative and an institutional perspective.

From an institutional perspective the decision raised questions about the relationship between the African Union and the United Nations, the relationship between the African Union and its member states vis-a-vis broader international issues, and the relationship between international organisations and their African member states vis- a-vis African Union decisions.

From a normative perspective the decision raised questions about the reality of a new value-based international law centred on the protection of humanity and human rights and whether such a new international law could escape accusations of neo-imperialism.

The African Union position also raised questions about the respective roles of peace and justice. It forced us to confront the question of whether the ICC’s pursuit of Al-Bashir threatened the peace process in Sudan. The African Union requested the UN Security Council to defer the Al-Bashir indictment for 12 months so as not to undermine the delicate peace process in Sudan and to combat impunity.

In considering why Malawi did not arrest Al-Bashir, the ICC decided that the issue of President Al-Bashir’s immunity was separate from Malawi’s failure to arrest and surrender President Al-Bashir. In short, the ICC ducked the issue of immunity.

In 2012 South Africa expressed concern about the ICC’s decision not to consider a complaint about Israel lodged by Palestine on the grounds that Palestine was not a member of the ICC. South Africa also complained about the one-sidedness of the ICC’s investigations in Libya.

The Rome Statute itself has many ambiguities. Many commentators and legal academics have concluded that Articles 27 and 98 are in conflict. On the one hand Article 27 takes away all immunity attaching to Heads of State and other government officials such as Foreign Ministers and diplomats. Article 98, on the other, provides that Courts cannot proceed with a request for surrender which will require the requested State to act inconsistently with its international obligations. The African Union pointed out this contradiction to the ICC. Our government also referred to this ambiguity in relation to the court proceedings in the North Gauteng High Court.

The United States has been able to exploit the loophole in Article 98(2) to protect its service members stationed in different parts of the world. After the Rome Statute came into operation, the United States passed a law which allowed it to withdraw military assistance from a number of non-NATO states and only restore this aid after those states signed bilateral immunity agreements with the United States in terms of Article 98(2) that they would not hand over any US national to the ICC without United States consent.

This law also empowered the US President to use military force to free American soldiers held by the ICC.

A second ambiguity arises from the dichotomy between peace and justice in the Rome Statute. The primary objective of the Rome Statute is to maintain peace and security. Article 53 gives the ICC the discretion to make decisions ‘in the interest of justice’. Some commentators link this phrase to the Article dealing with the preservation of peace. In other words, they maintain that in order to close the impunity gap, the ICC can decide to waive the investigation of certain situations if it would be in the interest of justice to do so.

Former South African President, Thabo Mbeki, set in motion an irreversible peace process in Sudan. By June this year, when the application to surrender President Al-Bashir was heard in the North Gauteng High Court, Sudan was divided into two states – Sudan and south Sudan. If the objective of the Rome Statute is to preserve peace, one could hypothetically ask whether the peace in Sudan was so fragile in June 2015 that the justice element in the peace/justice dichotomy prevailed and warranted the arrest of Al-Bashir for the sake of humanity.

The inconsistency of member states and the way the ICC functions also contributed to its loss of legitimacy. Until 2011, anyone in Britain could request an arrest warrant from a Judge. After the 2008 war in Gaza, pro-Palestinian activist groups in 2009 sought an arrest warrant against Tzipi Livni over her role in Operation Cast Lead at the time when she was serving as Foreign Minister of Israel. On hearing this, she decided not to go to Britain and the Court subsequently annulled the warrant. However, in 2011 Livni arrived in London after Britain amended its law to prevent private citizens from seeking arrest warrants against Israeli officials in Britain.

Gaza 2014 is the one ICC situation that requires minimal effort to investigate but which the ICC has not moved on. Its constituent atrocities have been broadcast live for much of the 50 days of the attack and documented by respected international organisations. The Dahiya Doctrine, on which Israel relies for its foreign policy in Palestine and other Arab countries is a publicly announced one and amounts to a final solution to the issue of lebensraum in Israel and Palestine. Its author, Major General Gadi Eizenkot, and promoters Ehud Olmert and Colonel Gabriel Siboni would seem to have at least a prima facie case to answer.

In June 2011 the ICC issued arrest warrants for Muammar Gaddafi and two others for allegedly committing crimes against humanity. Four days later the African Union decided that its members should not comply with the ICC decision because it was discriminatory since it targeted Africans while ignoring the acts of northern powers in Iraq and Afghanistan.

When the man considered to have been responsible for the gassing of the Kurds at the behest of Saddam Hussein, Ibrahim al-Douri, went to Austria to receive medical treatment, it was hoped that he could be arrested. However, despite international pressure, Austria put its obligation to Saddam Hussein’s government above its obligations to international law and allowed al-Douri to return to Iraq.

Similar choices have been made by the Saudi Arabian and US governments (regarding Idi Amin and former Peruvian Intelligence Service Major Ricardo Anderson Kohatsu respectively).

In each case, politics trumped human rights.

The unilateral determination by the ICC Prosecutor to set up thresholds to determine the gravity of atrocities and which cases should be investigated contributed to the ICC’s credibility and impartiality. It became politically and ethically problematic for the ICC and created the perception that the ICC was choosing sides in a conflict and pursuing its mandate with impunity.

The South African government is of the view that the ICC acted in bad faith in the Al-Bashir saga. Our government has stated publicly that on 28 May 2015 the ICC invited South Africa to hold consultations with it regarding the execution of the warrant of arrest. South Africa accepted the invitation to consult with the ICC in terms of Article 97 of the Rome Statute and hoped for a constructive discussion on the difficulties experienced in executing the warrant of arrest. The first meeting between South Africa and the ICC took place on 12 June 2015 and a second meeting was scheduled for 15 June 2015. The ICC sought an earlier meeting and that was arranged for Sunday 14 June 2015. However, late on Saturday night, i.e.13 June, the ICC Prosecutor made an urgent application to the ICC in the following terms: “Prosecutor’s Urgent Request for an Order clarifying whether Article 97 consultations with South Africa have concluded and that South Africa is under an obligation to immediately arrest and surrender Omar Al-Bashir”

The Prosecutor made the urgent request to the ICC without giving any notice whatsoever to South Africa. The Prosecutor asked that details of the Urgent Request remain confidential but that the decision of the ICC be made public. The ICC heard the matter immediately and decided that the Article 97 consultations with South Africa had ended and that South Africa was under an obligation to arrest and surrender President Al-Bashir.

Politics will always be part of the ICC’s functioning. Moreover, the interplay between perception and reality is very narrow. It becomes even more pronounced when one is dealing with political actors who guard their state sovereignty jealously. The ICC lost its way when it failed to manage the collision between law and politics, thereby allowing perceptions to reinforce the view that it was established and functions for purposes other than the primary purpose of preserving international peace, justice and security.

South Africa’s withdrawal from the ICC must be seen as constructive. The ANC has no intention to detract from the country’s prioritisation of human rights. In fact, by withdrawing, South Africa would be holding up a mirror to the ICC to give it an opportunity to confront its shortcomings.

The following action steps would go a long way to restore the legitimacy of the ICC and perhaps afford South Africa an opportunity to reconsider its decision to withdraw:-

  • The ambiguities in the Rome Statute need to be removed and the opportunity for some states to blatantly use the ICC for political purposes must end;
  • What is clear is that not every atrocity crime can be investigated. Consequently, a transparent and objective regulatory framework should be introduced to determine the criteria for the referral of cases

for investigation, the ranking of crimes and the establishment of gravity thresholds acceptable to all member states;

  • The wide discretion given to the ICC Prosecutor should be curtailed;
  • The ICC should make a conscious effort to get all states to accept and ratify the Rome Statute;
  • Permanent members of the UN Security Council, many of whom are not members of the ICC, should either join the ICC or not have the power to refer cases to the ICC for investigation; and
  • Certainty should be given to the relationship between the functioning and legal framework of the ICC and legal concepts such as customary international law, the immunity of Heads of State, what legal duties are owed to Party states and the legal position of non-states vis-a-vis the ICC.

The ICC Second Review Conference is scheduled to take place in 2017. The ICC should use that opportunity, in the words of President Zuma, to reconstruct and reconstitute itself.

This paper was delivered at a Panel Discussion of The Cape Law Society on the 30th of October 2015.

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