Phew Makhaya Ntini my brother, what a few weeks!

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Makhaya Ntini, brother what a few weeks it was with the Lungi Ngidi saga and the support given to the Black Lives Matter (BLM) movement by 30 former Protea cricket players. If this campaign is to stop all racism and discrimination in sport and South Africa in general, you and the other signatories have my full support.

I hope you don’t mind that I call you, my brother Makhaya. You see, I’m one of your greatest fans. I was there when at Kingsmead you tormented the Pakistan batsmen with your pace. You fielded in between overs at the infamous Caste Corner. We urged you on by signing “Mkhaya Mkhaya Mkhaya is on fire, burn Pakistan burn”. Do you remember that day in the searing Durban summer sun? You had the mainly white crowd sitting at Caste Corner on their feet. That night my father-in-law phoned and said that he saw me on the television at the cricket and that I looked a bit worse for the wear suspecting that I had one too many. I blamed your cricket excellence for my sorry state of affairs!

I was in front of the television cheering madly, when in 2003, you became the first South African to take ten wickets at Lord’s. Your best performance, however, came when you took 13 wickets for 132 runs against the West Indies in the Port of Spain on 12 April 2005. Again I was cheering madly. Also when in 2006, you achieved the best bowling figures by a South African in an ODI, demolishing Australia with 6 wickets for 22 runs. I followed your career wherever you went and was sad the day you retired in 2011.

I listened to your subsequent interview on the SABC where you recalled that you often felt lonely throughout your international career. You remembered that you would run instead of using the team bus to commute between hotels and stadiums as your team-mates would often avoid sitting with you. This is sad indeed but hopefully; you never felt lonely on the cricket pitch as the thousands of fans of all colours cheered you on and applauded your achievements. Also, you can take solace in the fact that human social interaction is complicated at best – although playing for my schools 1st rugby XV, I was never part of the in-crowd and often sat by myself on the bus to the next match.

I’m writing to you as I see your name is first on the list of the signatures to the statement. As my hero, you are the best placed to address some of the questions I have about the statement and the unconditional support expressed for the BLM movement. Where can I start? I note that the statement includes that many white people cannot accept that black cricketers have proved that they are good enough to play at the highest level. This is a bit of a broad statement to make don’t you think? I’m an avid cricket fan and have noted first hand the admiration people of all backgrounds have for you and other cricket players of colour like “The Ash” Hassim Amla and many others that have followed in your esteemed footsteps.

Yes, there will always be a small minority that will take issue with everything. Still, by-en-large cricket followers are knowledgeable and supportive of cricket talent irrespective of the colour of the player. They, for example, know instinctively when the wool is being pulled over their eyes like at the 2015 Cricket World Cup when interference from above led to the in-form Kyle Abbot being dropped in favour of Vernon Philander in the semi-final against hosts New Zealand. Vernon as recent as February this year recalled that he knew something was amiss. I feel very sorry for him as it is not his fault that he was placed in this invidious position.

They also knew that every player in the 2019 Springbok team was there on merit irrespective of transformation, and supported the team wholeheartedly. Why therefore include in the statement that transformation is always rammed down the throats of national teams when they lose, but never when they win. Clearly, following transformation blindly in 2015 went badly wrong for the Proteas, whereas transformation coupled with merit in the victorious national rugby team yielded spectacular results on the world stage at the Rugby World Cup.

I do not doubt that many of the 30 signatories have experienced racism or discrimination during their career. This must be rooted out. I suggest that as the eminent former black national cricket player brother, you partner up with a renowned retired white national cricketer, perhaps somebody like Shaun Pollock, to form a committee. The committee can function under the chairpersonship of a retired judge. The committee will be a safe space to which any nationally representative cricket players can bring any allegations of racism or discrimination for investigation and resolution.

Brother, coming to BLM, I would be willing to come aboard the movement wholeheartedly, if somebody can explain to me what the movement stands for internationally but even more importantly locally. What is it aims and how do the 30 signatories that support BLM understand these aims? Is it to fight racism and discrimination against black people and to promote equal opportunities? If so, I don’t have any issue with the movement, and it will have my full support.

Or is the aims that of the often violent BLM movement that we saw recently in the United States? The same BLM movement for which one of its founders and leaders admitted publicly recently that they aim to promote Marxists aims? The same organization whose goals include the destruction of the Western family structure. If it’s not them then who then is driving the irrational demands to “defund the police” in the USA? And their counterpart in Britain who is calling for the abolition of prisons, who have declared that unemployment is violence and that the Coronavirus is racist? Hopefully, these are not the aims of the local BLM movement?

Brother also, how does one explain the intolerance often displayed by the BLM movement? You are either with us, or you are racist is the mantra often put forward. If somebody, for example, dares argue that All Lives Matter they are shouted down and accused of being insensitive to black voices. Or even worst people are shot and killed for claiming All Lives Matter like what happened to Jessica Whitaker in the USA a few weeks ago.

Also, even just putting forward a suggestion that might make the slogan more inclusive and therefore more broadly acceptable to people of all backgrounds leads to accusations of racism and not listening to black voices. This happened to me recently when on Facebook, I merely suggested that it perhaps should be changed to read BlackLivesMatterToo.

Having said that I do appreciate the need to at this stage focus on Black Lives Matter. Like Faf du Plessis said so eloquently recently All Lives don’t Matter Until Black Lives Matter. Even so, there is no reason to brand people that argue that All Lives Matter is more appropriate as people that deny the existence of racism or even worst racists. Unfortunately, this is what happened in some circles to Boeta Dippenaar and Rudi Steyn recently, which I find problematic as they also have the right to voice their opinions.

Arguing that at this stage Black Lives Matter should be the focus and not All Lives Matter, however, opens the door to contend, like Boeta Dippenaar that Rudi Steyn did, that farm murders should also be a particular concern at the moment in the South African context. Those worried about farm murders are often told that no all murders should be of concern. Does this not sound a bit like the argument that All Lives Matter and not just Black Lives? I hope you do see the contradiction brother because trust me the brutal nature of farm murders of both farm owners, their families and workers are of great concern to the community I grew up in. I hope that you and the other signatories will see your way open to sometime in the future condemn all murders but specifically farm murders. Such a gesture would do a great deal to heal the divisions in our wounded society.

Lastly, I would like to find out who the audience is of the Black Lives Matter movement? That is, whose behaviour towards black people is it aiming to change. Obviously, it is white people but should the concern for Black Lives not also be aimed at our current government? A government under which watch inequality since 1994 increased, a government under which rampant corruption has taken root, a government that did not show much care for a black life when Colins Khoza was killed in Alexandra at the beginning of the lockdown.

A government that is often failing its citizens and whose mismanagement of the economy has led to untold misery even before the lockdown for many black households. My white vote or voice does not count for much. A stance by the 30 signatories saying to the government that they must get their house in order will, however, be a powerful message to drive urgently needed governance and economic reforms and bolster President Ramaphosa against the detractors in his party.

Black Lives Matter should also take issue with the high incidence of violent crime in the black community and the impact it has on the social fibre of these communities. It, therefore, need to speak out publicly against criminal elements and implore the government to improve policing and the justice system urgently.

To conclude, all sportswomen and men representing our beautiful country have a specific obligation to fight any form of discrimination in sport. The African National Congress representative to the United Nations in 1971 put is so well when he said, and I quote:

“The moral position is absolutely clear. Human beings should not be willing partners in perpetuating a system of racial discrimination. Sportsmen have a special duty in this regard in that they should be first to insist that merit, and merit alone, be the criterion for selecting teams for representative sport.”

I trust that you and the other signatories support the notion that merit and merit alone, should be the primary criteria for representing South Africa in sport at representative level. The 2019 Springbok team showed that it could be done without negating any of the transformation imperatives.

Brother, I apologize for the rather long message and laying so many questions at your feet. I do, however, know that you have the interest of all South Africans at heart and that you will engage seriously with the issues that I raised herein together with your co-signatories. I don’t expect answers but just an appreciation that sometimes there are two sides to a story. This has always been my life philosophy.

It would, however, assist if the aims of the BLM could be clarified especially as it pertains to the South African context and who its message is aimed at. Also, whether the local movement shares some or all of the goals of the movement internationally as espoused in the USA and the UK.

I would like to wish you well in all your future endeavours.

Your greatest cricket admirer

COVID-19 Lockdown and the lack of legislative oversight over the executive in South Africa

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Introduction

South Africans responded by and large positively to President Cyril Ramaphosa’s initial call for a national COVID-19 lockdown. Citizens indicated their preparedness to surrender aspects of their civil rights in the interest of the common good and the compelling necessities of the crisis, recognising the necessity of prioritising the right to life of the many who might be susceptible to the virus.

The recent extension of the lockdown for a further two weeks was met with some concerns. It is feared that it will deepen South Africa’s economic crisis. Others argued that it must end and started to look at how and when.

Rights affected by the national lockdown

The declaration of a national disaster in terms of the  Disaster Management Act 57 of 2002 has affected several of the fundamental human rights enshrined in the South African Constitution. These include the freedom and security of the person, freedom of expression, assembly, movement and residence, trade, occupation and profession, and the rights to education, privacy, and access to information.

The concentration of power in the executive branch

The concentration of all the power in the executive branch of government to deal with and manage the health crisis, without appropriate oversight, should be of concern to ordinary South Africans.  Kenneth Roth of Human Rights Watch recently wrote of the inherent dangers thereof in an article How Authoritarians Are Exploiting the COVID19 Crisis to Grab Power.

“Recognising that the public is more willing to accept government power grabs in times of crisis, some leaders see the coronavirus as an opportunity not only to censor criticism but also to undermine checks and balances on their power. Much as the “war on terrorism” was used to justify certain long-lasting restrictions on civil liberties, so the fight against the coronavirus threatens longer-term damage to democratic rule.”

Danger signs of the abuse of such concentration of power

Since the announcement of the lockdown, we have seen excesses by the security forces despite the Presidents pleas that they act with constraint, we have seen worrying signs of kragdadigheid from the securocrats in the executive, we have seen Ministers overreaching in terms of what they are planning to do and we have seen how people are treated differently when contravening the lockdown requirements with the starkest of these being a member of the executive only getting a reprimand and a two-month suspension as Minister, whereas ordinary South Africans are summarily arrested when contravening the regulations.

In addition, serious concerns have been expressed initially over aspects of the executive branch’s intention to use location data in the fight against COVID-19.  The government’s changed position on this is clear from the changes between an initial set of directions issued on 26 March and new regulations issued on 2 April and their change of heart can be ascribed to the pressure civil society put on the country’s surveillance regime even before the crisis.

In the initial lockdown rules, Regulation 11E offered wholesale indemnity for police, soldiers and peace officers like metro and traffic police, collectively defined as enforcement officers from any claims for damages or injury arising out of the performance of their duties in terms of the regulations. Just two hours before the lockdown, new regulations withdrew the wholesale indemnity for enforcement officers. This initial provision was made although such indemnity is banned even in a State of Emergency, according to Section 37 of the Constitution and illustrates the dangers inherent in the executive having unfettered powers confirmed upon it without appropriate oversight.

Role of the judiciary in overseeing the executive branch

Professor Balthazar highlights that securocrats need oversight even in the midst of a pandemic but Especially in the midst of the pandemic. He however, argues that in the current situation such oversight is primarily the role of the courts:

“….the temptation of members of the executive to move out of their designated lane during this lockdown is cause for concern and therefore some independent control. For this reason, civil society needs to be vigilant. While the judiciary has, in the two cases brought to date, been wise to defer to executive decisions made to protect the health of the nation, courts will remain the primary mechanism of oversight under the present dispensation.”

Advocate Gary Pienaar in an article on Democratic oversight in the time of the COVID-19 lockdown highlight that Chief Justice Mogoeng Mogoeng importantly instructed the courts to stay open during the lockdown, among other reasons so that citizens could challenge the lockdown rules if necessary. The Constitution makes provision for such challenges, even under a state of emergency, which gives the government extraordinary powers, beyond those it now has in terms of the declared state of national disaster.

The judiciary is therefore well placed and able to exercise oversight over the executive. Speedy access to the courts is however beyond the means of most South Africans and will be beholden to civil society organisations and watchdogs to ensure that the courts are approached when necessary to seek appropriate relief.

Oversight by the legislative branch over the executive

What then of oversight by the legislative branch of government? Parliament commenced its scheduled recess and constituency period on 18 March, within three days of the declaration of the national disaster, suspending all sittings until 13 April 2020. This despite the health crisis facing South Africa and the power now concentrated in the executive branch. With the extension of the lockdown by a further two weeks it is not clear what Parliament is planning to do post 13 April 2020.

A media statement issued on Friday 27 March states that Members of Parliament, who are classified under the lockdown Regulations as amongst those performing essential services, will be fulfilling their constitutional responsibilities during this period, in their constituencies in support of efforts against COVID-19. As advocate Gary Pienaar however highlights –

“The statement provided no guidance or direction as to how the members of parliament are to fulfil these constitutional responsibilities, including the duty to scrutinise and oversee executive action, or the duties to facilitate public participation in oversight during a lockdown.”

On Sunday 5 April 2020 Parliament issued another media statement. The statement opiniates that it is the Executive’s responsibility to ensure that it safeguards the rights of individuals during these difficult times and for Parliament to oversee the delivery of services needed to relieve the burden of the COVID-19 pandemic on the public. It goes on stating that Parliament must not be seen as interfering with the responsibility of the Executive to implement measures for which the national disaster has been declared.

Oversight during a lockdown can, in terms of the statement, be done through, for example, individual MPs carrying out constituency work in various communities and holding the Executive accountable for implementing measures designed to overcome the state of disaster. The responsibility to conduct oversight is, therefore, not limited to committee meetings.

Other than the aforementioned Parliament sees no need to do more in respect of oversight and in summary, indicates that the Legislator will, after this period, still be able to hold the Executive accountable, in the usual ways, over how it executed the state of national disaster.

Parliament went as far as to deny a request of the Democratic Alliance to establish an oversight committee over the cabinet and state organs during the COVID-19 lockdown. In response to the decision of the Deputy Speaker of Parliament the leader of the opposition stated that Parliament has been rendered obsolete by refusing to adapt to the changing government during this time and the changing circumstances surrounding its work.

In comparison, the Speaker of the Western Cape Parliament announced his intention to establish an ad hoc committee to conduct oversight over the Western Cape Government’s response to COVID-19, which announcement has been welcomed.

International experience in oversight over the executive during the COVID-19 crisis

According to the 5 April media statement of Parliament parliaments all over the world are grappling with the effect of the COVID-19 pandemic on their constitutional obligations, such as oversight, lawmaking and public involvement. The question should be asked whether the South African Parliament have then considered any of the international experience in oversight over the executive during the pandemic?

Ittai Bar-Siman-Tov conducted a comparative survey in March 2020 on Parliamentary Activity and Legislative Oversight during the Coronavirus Pandemic. He highlights that the serious challenges the virus poses for legislatures in many countries around the world are twofold. First, the Coronavirus, and the measures taken to contain its spread, makes it difficult for parliaments to operate given the size of most legislators and the fact that the standing orders mostly require members to be physically present at sittings.

The second challenge is that governments in many countries have treated the situation as an emergency (either in practice or also formally declaring a national state of emergency). He warns that during states of emergency, executives want to accumulate power, centralize authority and be as effective, swift and expedient as possible. They tend to want to circumvent the legislatures’ cumbersome legislative process and evade parliamentary scrutiny.

“The Coronavirus crisis is no different, as many heads of the executive branch around the world declared “war” on the invisible Coronavirus enemy. Consequently, many governments have reacted by adopting far-reaching restrictive measures to combat the spread of the Coronavirus. These measures often infringe on a host of fundamental human rights (such as liberty, freedom of movement, freedom of assembly, freedom of occupation, and privacy) and raise rule-of-law qualms. These measures are mostly adopted through executive orders, governmental decrees, emergency regulations and so forth – all being legal norms that are made by the executive branch, bypassing the traditional legislative process by parliaments. This raises crucial questions about the power of the executive and the role of the legislative branch in overseeing this power. It raises vital questions to the wellbeing of democracy itself during the Coronavirus crisis.”

What were the main findings of his comparative survey which covered 26 countries? These can be summarised as follows:

  • In all the surveyed countries it was taken for granted that the government cannot shut down parliament or determine its mode of operation. It was agreed that it was up to the parliament to determine its operation during the coronavirus pandemic.
  • The majority of responses received was that parliament must continue to operate throughout the Coronavirus crisis. Indeed, most surveyed parliaments (22 out of 26) continue to operate.
  • This is true even for Italy – the country that has so far been most ravaged by the Coronavirus, and whose death toll surpassed the death toll in China.
  • This is also true despite the fact that in several of these parliaments, such as in France, the UK and the US, several MPs and ministers have been diagnosed with the coronavirus).
  • In the four exceptions to the general trend, even in parliaments that closed their session or suspended their activity, this has always been a decision made the parliament (rather than the executive), and usually at least some legislative oversight was maintained. For example, in Lithuania, Parliament has closed until April 7, but plenary meetings and committees on urgent issues are held; and in Slovenia parliamentary activity was generally deferred, but the National Assembly will hold meetings about exceptional cases.
  • Of the legislatures that continue to operate, there appear to be two models: some legislatures (such as in the US, UK, and South Korea) continue as usual with their regular mode of operation; whereas others have modified their operation with such modification becoming more common even in some of the parliaments who have made no changes to date.
  • One of the common modifications includes a reduced number of meetings and changes to the parliamentary agenda, focusing on the Coronavirus and other necessary and urgent issues, while postponing less immediate issues.
  • Another common modification is finding various means to limit the number of MPs attending a sitting while maintaining the minimal quorum rules and keeping the proportional representation according to the relative size of the parties.
  • Additional modifications include videoconferencing and other technological solutions to avoid or minimize physical presence (albeit in some parliaments this is still considered problematic given quorum rules that require a physical presence).

Conclusion

Given the international experience, the critical importance of the legislative branch exercising oversight over the concentration of power in the executive during the COVID-19 pandemic and the danger signs already seen locally of the possible abuse of such power; serious and critical questions must be asked of the lack of action by the South African Parliament and our elected representatives to date to ensure real and effective oversight.

In her recent article Now is not the time to suspend parliamentary oversight Samantha Waterhouse asks pertinent questions following the 5 April media statement of Parliament. These include on what basis will the legislature call the executive into account during the period, there may be many opinions on what’s reasonable during a crisis situation so what should the limits be on executive decision-making, what the requirements for seeking legislative go-ahead should be beforehand, or reporting on decisions taken after, during the disaster period?

She rightfully concludes that the work of the past two decades to promote an accessible, strong and independent legislature must be increased, not relaxed at this time. The question remains if the South African Parliament will be equal to the tasks and if our elected representatives will stand up for us the ordinary citizens, to keep in check the extraordinary powers accumulated in the executive in this moment of crisis. Only time will tell.

Postscript

This article dealt mainly with oversight by the legislative and judiciary branches of government over the executive in dealing with the COVID-19 pandemic. The media and civil society similarly have a key role to play in this regard and their efforts should be welcomed and supported. Given the role of the media, two recent incidents are of concern – the media being barred from entering a courtroom in a COVID-19 related case and a journalist being shot at when covering police action and subsequently being mocked when reporting the incident.

The following are additional links that will be useful in considering the topic of this article:

The rule of law in times of crisis: COVID-19 and the state of disaster 

Ensuring citizen oversight in Kenya during the COVID-19 pandemic 

What does a COVID-19 national state of disaster mean for rights? 

Ipid investigates 21 complaints of murder, rape and assault against cops during the lockdown 

Concerning lack of parliamentary oversight – DA 

COVID-19: Contact Parliamentary Committees and MPs about government’s actions and response

Opinion: Fear and policing in the time of COVID-19

Security forces are waging war on our constitutional democracy

 

 

Invoking Mandela to plead for the vote of the Afrikaner

At the time of the 2016 municipal elections, I wrote a contribution The ANC’s dismal attempt, filled with irony, at wooing Afrikaans speaking voters , on the then President Zuma’s futile attempt to attract White voters to vote for the ANC in an English radio advert flighted on the Afrikaans radio station, Radio Sonder Grense (RSG). In the article I pointed out seven ironies of the ANC’s attempt, including that in doing so they, as a supposedly non-racial party, blatantly played the race card. I remarked as follows at the time:

“….maybe the ANC don’t actually need the White votes because they are still generally expected to come out tops this year despite the growing electoral threat of the DA and the ANC’s own stepchild, the EFF. But maybe not in this year’s local government election, but highly possible in the next national election the ANC might just desperately need each and every White or Coloured Afrikaans speaking voter it can lay its hands on just to stay in power.”

Well, it’s clear that time has come that the ANC will need the vote of as many minority voters as is possible. It’s evident when one reads in an article White voters may rescue the ANC, the party’s barely contained excitement that White voters might just save their bacon in Gauteng. This when the expected % of White voters who will vote for the party in Gauteng is estimated to be a paltry 8% as if that is significant in itself, rather than that the said 8% might enable the ANC to just hold on to their majority in Gauteng.

“We have never had [such high support among white voters], even during the Mandela years,” David Makhura, the current Gauteng Premier is quoted as saying.

It is also clear that its desperate times for the ruling party when reading an article An opportunity for Afrikaners to have a Mandela moment by ANC Member of Parliament, Nick Koornhof, which article is based on a speech he recently delivered in Parliament. In his speech Koornhof pleads with Afrikaners to give at least one of their votes to the ANC in the upcoming election and that this will represents the magic “Mandela moment” for Afrikaners, in that it will strengthen Presidents Ramaphosa’s hand against the forces of populism. 

In an A counter appeal to Afrikaners, Hendrik Jansen van Rensburg highlights the following further ironies in this latest attempt by the ANC’s Nick Koornhof to woo Afrikaner voters in that:

  • The appeal is (again) made in English,  the language that the ANC insists on forcing upon all South Africans as lingua franca, regardless of any personal preference they might have.
  • A significant portion of the forces that oppose Ramaphosa in his attempts at positive change is coming from within the ANC itself and that the “forces of populism” that Koornhof believes Ramaphosa needs to resist are therefore largely present inside the ANC itself.
  • Both President Rampahosa and Nick Koornof sat by idly when at least six votes of no confidence in former President Zuma failed, so why should the Afrikaner voter now trust that under the Ramaphosa things will be different in the ANC? 

I wonder if Nick Koornhof realizes that when he says the Afrikaner must join the fight against the tide of populism, that a blind vote of faith for Ramaphosa’s ANC, will place the whole country just one heartbeat away from a possible populist David Mabuza Presidency with Ace Magashule as his Deputy. 

But even so, I’m personally willing to give due consideration to Nick Koornhof’s plea. He says that he speaks as a member of the minority Afrikaner community and as such my possible support, and I suspect that many other reasonable and patriotic Afrikaners, requires his unequivocal pledge and/or guarantees in respect of the following key considerations for the future of our constitutional democracy:

  1. That the ANC abandon its stated aim of achieving a National Democratic Revolution (NDR), which is nothing than a blueprint to move the country slowly down a failed path of more and more socialism (and stop their admiration for failed states like Venezuela).
  2. That the ANC respect all private property and abandon the notion of “expropriation without compensation” and rather accelerate land reform within the current legal framework aimed at addressing the wrongs of the past.
  3. That the ANC desist from nationalising the public Health Care sector through the National Health Insurance, and rather focus on fixing the ailing existing public health care system, thereby ensuring health care for all.
  4. That the ANC respect the independence of the Reserve Bank and not make any moves to nationalise it in any shape or form.
  5. That all legislation based on outdated racial classifications like the Employment Equity Act and many others be replaced with legislation that doesn’t use race a the proxy for disadvantage, but rather real measurable actual disadvantage that’s not based on the race of a person.
  6. That a sunset clause be placed on all Affirmative Action measures that will free all born free South Africans (those born after 1994) from the burden of having to pay for the sins of their fathers and enable them to compete on an equal opportunity basis, as opposed to an equality of outcome basis, with their fellow countrymen and women in all spheres of life.
  7. That the ANC pro-actively advance mother tongue education at primary education level and acknowledge the right of children to be taught in their mother tongue in line with international best practice.
  8. That the ANC in line with Mandela’s stated view acknowledge the need for at least one Afrikaans University in the Western Cape where the majority of citizens speaks Afrikaans as their first language.
  9. That the ANC do away with all those restrive labour laws that hinder rather than facilitate job creation and that place an undue administrative burden on mainly small businesses. 
  10. That the ANC fixes the mess at all the State Owned Enterprises and especially Eskom as a matter of urgency.

I think the aforementioned are all reasonable requests that require serious consideration. My gut feeling however says that any one of the above let alone all of them, even though clearly in the best interest of South Africa, will be a bridge too far for the ANC.

Please proof me wrong Nick Koornhof and you might just get my vote and that of many Afrikaners. The ball is in your and your party’s court.