As a self-identified party hack, ANC National Chairperson Gwede Mantashe got stuck on the constitutionally permitted motion of no confidence in a president under Section 102 of the Constitution, maintaining the ANC would never vote in favour of that because it would spark “a massive split” and “collapse” in the ANC.
And so one of the governing ANC’s top officials effectively gave the Constitution — it also allows for a president’s impeachment under Section 89 — the Trudeau salute, named for the former Canadian prime minister Pierre Trudeau’s penchant to flip off media, anti-French protesters and others he disliked.
In his testimony before Deputy Chief Justice Raymond Zondo, Mantashe relied on repeatedly asserting that South Africa’s party political system required loyalty and protection from MPs who must toe the party line, and then proceeded to split some political hairs and make a couple of misleading statements.
Mantashe’s fallback position was South Africa’s electoral system, in which public representatives are elected on a party political ticket.
“The party contests the election, the party goes to government and that party elects a president in Parliament,” testified Mantashe, arguing that any call through a no-confidence motion for the ANC to fire its president because the Constitution says this is permissible would be bad advice.
“It’s a political issue, it’s not just a superficial technical, legal issue… collapsing your party and thinking you can survive.”
Mantashe’s repeated referencing of the electoral system links back to the 2017 response by then-president Jacob Zuma to the application in the Constitutional Court for a secret ballot from United Democratic Movement leader Bantu Holomisa.
Zuma, in his April 2017 court papers, under the heading “The Party Discipline Principle”, argued the ANC constitution requires its members to “observe discipline, behave honestly and carry out loyally the decisions of the majority and decisions of higher bodies” — or face disciplinary steps.
And as MPs are elected on a party political ticket to Parliament and legislatures, “this obliges a member of a party… to remain loyal to such party consonant with the expectations of voters who gave their support to the party. The obligation of loyalty to party is not inimical to the notion of an accountable, responsive, open and democratic government.”
Zuma argued this was “the advantage of enjoying a majority in Parliament and that is how the mandate of the majority is carried out by the majority party”.
Ultimately, the June 2017 unanimous Constitutional Court judgment which ruled that a decision on a secret ballot was solely for the National Assembly speaker also diminished this narrow party political argument.
The court ruled that: “Nowhere does the supreme law provide for them [MPs] to swear allegiance to their political parties, important players though they are in our constitutional scheme. Meaning, in the event of conflict between upholding constitutional values and party loyalty, their irrevocable undertaking to in effect serve the people and do only what is in their best interests must prevail. This is so not only because they were elected through their parties to represent the people, but also to enable the people to govern through them, in terms of the Constitution.”
That four years later the governing ANC has not dealt with the impact of that ruling by moderating its stance is telling.
On Wednesday, the balance between party and state again arose when Zondo probed Mantashe on when what is in the ANC’s interest may not necessarily be in the interest of South Africa.
“We have been asked this question 101 times, is it the ANC first or is it the country first? It is the country, but we are in the government of that country through the ANC,” replied Mantashe. “It will be a huge call for any ANC member to destroy the ANC because he thinks it’s in the interest of the county.”
With a reference to the pending changes to the election legislation to accommodate independent electoral candidates, Mantashe reiterated that a party political system was still in place.
“You are on the ANC list, you have the duty to strengthen the ANC. You are not a free rider because you are in Parliament,” said Mantashe. “You are on the ANC list. You are in Parliament. You are expected to respect the Constitution… but you are not a free rider. You are not on a free-range where you can do as you like.”
It was one response to that prickly question — does ANC HQ Luthuli House tell MPs what to do?
“MPs are allowed to think and take decisions. But some decisions cut at the heart of the party, and the party must take political decisions.”
On some matters, there may well be a free vote. But the line was set: “On political matters that directly affect the heart of the ANC, we can’t allow a free-for-all.”
It was that line Mantashe held as State Capture Commission evidence leader advocate Alec Freund SC asked about Luthuli House intervention given that State Capture claims were not probed by Parliament before a June 2017 directive to four parliamentary committees — despite clams emerging in public as early as 2011.
“We [Luthuli House] are not running Parliament… Parliament will be aware of stories, what they do about it is another issue,” said Mantashe. “But further down, we saw portfolio committees taking action.”
Testimony in February revealed divisions over the State Capture claims that erupted publicly with the #GuptaLeaks and a push to retain inaction as the default mode in the ANC parliamentary caucus.
But Mantashe persisted. “Caucus takes decisions. If the headquarters of the ANC thinks it must communicate decisions, it will go to caucus,” he said during Wednesday’s testimony. And: “Parliament takes decisions and caucus executes them. They don’t phone Luthuli House.”
But that’s little more than political hair-splitting.
The ANC in Parliament consolidates its positions in the so-called study groups, which are attended by ministers and often also senior officials, or deployed (not)cadres in the state or state-owned entities. And if the parliamentary grapevine is to be believed, between ANC Chief Whip Pemmy Majodina and Public Enterprises Minister Pravin Gordhan, ANC MPs of the Standing Committee on Public Accounts received orders to ensure the suspension of the committee’s inquiry into racism allegations against Eskom CEO André de Ruyter until the power utility’s own probe is finished.
Mantashe’s line is also tantamount to hair-splitting because the reality is that the ANC traditionally has not been shy to use its numbers to determine what happens in committees and the House.
Although that numbers game can be destructive.
Parliament’s Joint Standing Committee on Intelligence was left limping for about two years, unable to appoint an Inspector General of Intelligence as the ANC pushed for its preferred candidate, Cecil Burgess, whom opposition parties roundly rejected. The ANC fell just short of the two-thirds vote in the House needed to get its man.
The twists and turns around the impeachment inquiry of Public Protector Busisiwe Mkhwebane may yet become another politically prickly test for the ANC parliamentary caucus, similar to the Nkandla security upgrade saga. Parliament was then found wanting, on the back of ANC numbers, for absolving Zuma from repaying anything despite the Public Protector’s remedial determination. This parliamentary decision, the Constitutional Court in March 2016 ruled, was unlawful and “inconsistent with the Constitution”. The ANC at the time had closed ranks around Zuma.
But motions of no confidence, in particular, seem to rankle the ANC. Mantashe described these as “mischief we need to resist all the time”.
In August 2017 Mantashe, then ANC secretary-general, came to Parliament ahead of the first-ever secret ballot no-confidence vote in Zuma, to address a special caucus. There, ANC MPs got their orders to vote against this constitutionally permitted motion amid much ANC talk of it being an opposition coup d’état and an attempt at regime change.
Zuma survived, on 8 August 2017, but the 198 votes against, 177 for and nine abstentions showed a much narrower margin than before, with about 35 ANC MPs voting with the opposition. Just 16 of the 400 MPs were not in the House that day.
Mantashe’s claim before the State Capture Commission that only nine ANC parliamentarians broke ranks is misleading, and not sustained by the numbers, given that the ANC at the time had 249 MPs.
And in his earlier talk of free votes, Mantashe was also mistaken about the November 1996 vote on the Termination of Pregnancy Bill. The ANC, which supported the legalisation of abortion, did not allow a free vote, but permitted those who did not want to vote in favour to absent themselves. Eleven ANC MPs did so. One ANC MP who attended, but abstained, Jennifer Ferguson, was considered for disciplinary action, according to news reports at the time.
Politically speaking, Mantashe’s insistence that the ANC would not support any no-confidence motion because of the dangers of collapse and splits was also misleading.
Just over six months after the secret ballot vote, in February 2018, ANC support for an EFF no-confidence motion against Zuma was a key tool in ensuring the then-president resigned from the Union Buildings to make way for President Cyril Ramaphosa after his election as ANC president at the Nasrec conference.
Presumably, all’s fair in love and war as the governing ANC, wracked by incessant internal factional battles, continues to regard itself in a battle to, as the lingo goes, “seize control of the levers of state” where every department and entity remains a “terrain of ongoing struggle”.
But that understanding of and approach to Parliament means the ANC relies on blunt instruments such as numbers and sacrifices the soft power of 21st-century governance and its decades-old practises of consensus building.
Mantashe’s apparatchik testimony may have made the job more difficult for Parliament’s presiding officers when they appear at the State Capture Commission. DM