Wednesday, April 27, 2016


This article first appeared in the Business Times section of The Sunday Times on 31 January 2016 

IN his essay Detentions Without Trial during the Apartheid Era, Robert Vassen brilliantly contextualises the history of the 90-day act. He opens by asserting that throughout the English-speaking world, the writ of habeas corpus, which translates as “let us have the body”, was in the most part consistently adopted, respected and practised.

The legal principle requires any detaining authority to produce the detained person in court and show just cause for holding them in detention. If the authority believed it had just cause, a formal charge had to be laid and evidence brought to court to prove the case.

If the authority could not justify the detention, the person had to be set free. In South Africa, this writ was practised without exception until the end of the ’50s. In 1963, the infamous minister of justice, BJ Vorster, rushed the General Law Amendment Act through parliament to accommodate the capture and detention in solitary confinement of the most senior members of the ANC.

The Rivonia triallists were arrested, with no charges, in July 1963. They were charged in October 1963, 86 days later. It was this amendment that gave the security police the authority to arrest anyone they suspected of being engaged or involved in any act against the state and to hold them for 90 days at a time. Apparently, Vorster boasted at the time, probably with a smirk on his face, that this was repeatable “until this side of eternity”.

When I first read about the four Sun International employees — three South Africans and a Nigerian — who were detained for four days and four nights in Nigeria without charge, Vorster ’s sarcastic smirk was the first thing that came to mind.

Apparently, company officials had to request and were later granted limited access to the four employees to give them food, water and blankets while they were detained. This followed Nigeria’s Economic and Financial Crimes Commission launching a probe into the South African hotel and gaming group’s investment in the Tourist Company of Nigeria (TCN).

TCN is listed on the Nigerian Stock Exchange and Sun International acquired 49.3% of the company in 2006. According to Sun International’s Michael Farr, it has been on the receiving end of all sorts of allegations from the commission since 2012, which were sparked by a feud in the family that controls the balance of the shares in TCN.

“We ’ve been asked to provide the Economic and Financial Crimes Commission with the history of our investment into the Tourist Company of Nigeria. They would also like to see trading records of the company and we’re very happy to do that,” said Farr.

In addition, there are allegations of “aggressive and intimidatory action” from trade unions which spread “false claims and circulated unfounded allegations to Nigerian authorities” against the South African hotel group. It apparently took the intervention of a foreign minister and the South African high commissioner to secure the release of the employees.

Two weeks ago, Rwandan President Paul Kagame tweeted: “#Africa: It will be just fine! Hard work, value addition & a lot more trade & investment cooperation among African people.”

In the same tweet he shared a link to an article that went as far as saying we should “expect a few [African] countries to call on the International Monetary Fund for help this year”. Intra-African trade links remain pitifully weak.

According to research by Ecobank, the bulk of the region’s trade is with Europe and the US, with only 12% being with other African countries. By comparison, 60% of Europe’s trade is on that continent. The same is true in Asia. In North America the figure is 40%.

What we forget is that trade is not done by countries — not even by governments. Governments facilitate trade. Governments don’t make widgets. Governments don’t sell widgets. Companies do.

What, then, is behind the apparent friction between Nigerian authorities and South African companies operating there?

It started with MTN’s hefty fine. I don’t recall the South African mobile operator ever denying the charges against it. Yet there seems to be no consideration for this fact, in the Nigerian authorities’ absolute resolve to impose the record sanction, which remains at $3.9-billion (about R63-billion).

A few days ago, Standard Bank’s 53.25% subsidiary, Stanbic IBTC, secured injunctions preventing the Financial Reporting Council of Nigeria from taking action against it, including exacting a $5-million fine.

Now, it’s Sun International. I do not want to believe that there is a concerted effort to frustrate South African businesses out of Nigeria.

I cannot see how that will serve the long-term interests of Nigerians. Some commentators say it is the government of President Muhammadu Buhari looking for alternative income streams due to the plummeting oil price given that oil makes up the lion’s share of Nigeria’s revenues.

Others say Nigerians are waking up to the commercial opportunity that is their country and they resent South African companies for taking the gap sooner than their local business people.

I do not want to believe these theories.

However, the timing of this animosity cannot be a mere coincidence.  

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