In our view

Proposals on non-profit groups pose serious threat to democracy - 24 Jan 2013 - Cape Times

Shelagh Gastrow

CIVIL society needs to act quickly if it wants to ensure its rights and role in our democracy are not curtailed by government. The "Policy Framework on Non-profit Organisations Law", released in June last year, proposes sweeping amendments to the Non-profit Organisations Act of 1997 which governs NPOs.

The proposed new law suggests the compulsory registration and regulation of NPOs by two new state bodies - the South African Non-profit Organisations Regulatory Authority (Sanpora) and the South African Non-profit Tribunal (Sanpotri) - which would allow government to examine the books, records and activities of non-profit organisations; issue sanctions and enforce punitive measures against organisations, including blacklisting those that have been involved in "unscrupulous practices".

The policy framework could be mistaken for being fairly altruistic. The stated intention is "to enhance When the media has been dealt with, civil society looks to be next the existing enabling environment for non-profit organisations to flourish and protect the sector from abuse". However, the inexplicit and hazy articulation of how these new regulations will be carried out, leaves civil society vulnerable to apartheid-style legislation that could threaten its independence, and ultimately our democracy itself.

The old Fund-raising Act of 1978 made it a crime for organisations to solicit or receive donations from the public without authorisation from the director of fund-raising. In practice, the act was used to suppress and control the activities of organisations opposed to apartheid. The director of fund-raising was well known for asking the security police to vet these organisations, consequently prohibiting them from receiving funding. And the Affected Organisations Act of 1974 even allowed the government to prohibit organisations from receiving any funds from outside South Africa. It also gave the government the power to dictate which voluntary organisations could be constituted and how they could use their funds.

The similarities between the proposed NPO law and the apartheidera legislation are chilling. For example, the new policy document states that the criminal justice system on its own is "ineffective" and "inherently defective" as a means of enforcing compliance. It suggests that a combination of criminal, civil and administrative remedies should be introduced, including measures to disqualify persistent violators from accessing funds and other benefits. Reminiscent of the Affected Organisation Act, the proposed NPO law also calls for the blacklisting of groups that have been involved in "unscrupulous practices".

The fact that the proposed new law suggests that a state institution, Sanpora, is better placed than our courts to apprehend criminal actions by NPOs, such as fraud, should automatically raise a big red flag. The implication is that an administrative body appointed by the minister of social development would deal with erring NPOs more effectively than the high court or Supreme Court of Appeal. This not only undermines the authority of our judicial system, but also allows for the harassment of NPOs.

Aside from the alarming similarities with apartheid-era legislation, there are also a number of perturbing assumptions. For instance, the new policy proposes the compulsory registration of all NPOs with Sanpora, which will have powers of inspection, search and interrogation and to impose sanctions. At present, the registration of nonprofits is voluntary, protecting freedom of association - a strong departure from apartheid rule. The existing NPO Act 71 of 1997 states that government departments must "support and enhance the capacity of non-profit organisations to perform their functions". This sentiment is missing in the proposed new policy. Given the punitive nature of the proposals, can we be expected to assume that the state will always behave in a rational, non- interfering and supportive manner?

Can the proposed NPO law ever be implemented in a fair and thorough way when the current attitudes emanating from government range between apathy to strong antagonism against civil society? It is estimated that there are about 120 000 NPOs in South Africa. In March 2012, 85 000 NPOs were registered with the NPO Directorate. However, this has suddenly dropped to just 29 000 according to NPO Legal Issues.

What has happened to the balance? A quick investigation has revealed that massive numbers have been deregistered without notice, with ramifications for their funding. This unilateral action by the NPO Directorate in the Department of Social Development does not contribute towards building trust between the civil society sector and the government, and is also contrary to the requirements before de-registration.

Given the number of NPOs in South Africa and their contribution to our society, democracy and economy, it is imperative that the conversation about the governance of the sector happens on a transparent platform. Any decent review of the current policy framework would show that what the sector needs is not more regulation, but more support. A few years ago, a policy brief issued by the South African Institute of Race Relations, suggested that "when the ANC has finished dealing with the media, it is quite likely that the civil society sector will be next on their agenda." It looks like that time has come.

Gastrow is executive director of the NPO Inyathelo