It is prudent, at this difficult time in our political development, to remember that when bull elephants appear to fight there is a lot of dust kicked up, the grass gets trampled, loud trumpeting is heard, ears are flapped aggressively and menacing mock charges take place. It is all a sham, no blood is shed and no actual engagement in battle occurs. Whether this is what is going on in the upper echelons of the African National Congress at present remains to be seen and will be seen when the votes are cast in the no confidence debate in the National Assembly on 18 April.

According to a financial policy expert in the employ of Allan Gray:

“South Africa’s big picture? To understand where we stand as a country with regard to the downgrade a brief overview of how countries use debt is required. The fiscal policy of a country essentially refers to how the revenue service (Sars for SA) plans to collect money (amending tax laws/rates) and how it plans to spend money (either using the taxes it collects or by using debt). Recently Sars announced that it had collected roughly 1.144-trillion rand in taxes for the 2016/2017 tax year and, unbelievably, this is lower than the amount they were expecting and essentially budgeted for. Whatever the government spends money on that is not covered by taxes needs to be covered by debt. The worse a country’s credit rating the more expensive it is for the country to issue debt (higher interest rates). South Africa has big plans, it seems, in the forms of, inter alia, radical economic transformation (a concern cited by the S&P), the uncertainty over the nuclear deal and the on-going higher education crises. Although these are mostly noble initiatives, they require money to implement, money that South Africa simply does not have (especially with a stagnant GDP). Should the government go ahead with these spending items, they will surely need to issue bonds to raise the money required, and it seems that the cost of this money received will rise. The repayment of this cost is then passed on to the average citizen in the form of higher taxes, higher inflation, lower GDP and a weaker rand to name but a few. Worst case scenario – South Africa is either unable to participate in debt markets or unable to repay their loans. The former scenario will result in a government unable to service its citizens while the latter could result in a bailout from the International Monetary Fund.”

What is not said in this advice on the implications of the recent changes in the cabinet, the discord in the top leadership of the ANC and the public anger with our feral president, is that any government unable to service its citizens loses its popularity or presides over a failed state. Similarly, a government which receives a bailout from the International Monetary Fund is one that has to accept the conditions imposed upon it as prerequisites to the granting of the bailout. The conditions are invariably onerous, especially for countries whose leaders go rogue.

In the case of SA, all of these dire scenarios can be avoided if the good people in the ANC/SACP caucus stand up to their current gormless and compromised senior leadership. It is salutary to recall the eerily prophetic words of Thabo Mbeki’s biographer, Mark Gevisser, written in 2007 and based on the input he received from those in the inner sanctum of the ANC pre-Polokwane:

“(Mbeki) was deeply distressed by the possibility of being succeeded by Zuma… he believed his deputy’s play for the presidency to be part of a strategy to avoid prosecution… Mbeki allegedly worried that Zuma and his backers had no respect for the rule of law, and would be unaccountable to the constitutional dispensation … There was also the worry of a resurgence of ethnic politics, and – given his support from the left – that Zuma’s leftist advisors would undo all the meticulous stitching of South Africa into the global economy that Mbeki and his economic managers had undertaken over 15 years … (T)he possibility of a Zuma presidency was a scenario far worse than a dream deferred. It would be, in effect, a dream shattered, irrevocably, as South Africa turned into yet another post-colonial kleptocracy; another ‘footprint of despair’ in the path of destruction away from the promises of uhuru.”

Perhaps, as he sat stony faced and passive during the ululating and standing ovations at the Kathrada funeral, Thabo Mbeki was pondering the path the country has walked since 2007.

If the country is to be saved from the kleptocracy predicted, then how to do so without too much personal sacrifice is the topic of this memorandum addressed to the lowliest ANC members of parliament who have it within their power to purge the ANC of the menace to the future of the country that the current top leadership of the ANC has become.

That power derives from the choice facing them in the up-coming no confidence debate. Party discipline is sure to dictate a vote against the motion of no confidence. Conscience, faithfulness to the country and fealty to their oath of office may impel some members of the ANC in the National Assembly to vote for the motion, siding with opposition formations and thereby, if around fifty of them so vote, ending the Zuma presidency. Their stated commitment to obey, respect and uphold the Constitution with its foundational values of accountability and responsiveness to the needs of the people would suggest that there is no option, given current circumstances, other than to support the motion.

If they are brave enough to be consistent, those ANC caucus members who are also SACP members ought to vote for the motion because the president has declined the SACP’s request that he resign voluntarily. Their vote of no confidence will cause the forced resignation of the president and the other members of his cabinet under section 102(2) of the Constitution. (There is an interpretation of constitutional principle that suggests that this would bring an end to the fifth parliament and precipitate a general election; that does not seem to be what the motion of no confidence is aimed at achieving.)

If it is correct that, properly construed, the Constitution does not distinguish voluntary resignations from forced resignations, the next step is that the Chief Justice then presides over the election of a replacement president by the National Assembly and must do so within 30 days of the successful vote of no confidence according to the provisions of section 86(3) of the Constitution. The new president thereafter appoints her or his cabinet for the remainder of the term of the fifth parliament of the new SA.

Some ANC back-benchers, learning from the horrific experiences of their party colleagues at local government level in August 2016, may recognise that their prospects of re-election are dependent upon ending the Zuma presidency and re-building the ANC’s brand with the electorate as soon as possible. They should be asking themselves: “What do I have to lose by voting for the motion?”

It is so that ANC party discipline may eventually be enforced through the termination of membership of the ANC of those found guilty of breaking its rules. Before termination occurs there must be due process in properly constituted disciplinary proceedings. Due process requires that all appeals and reviews have been exhausted in respect of any person who allegedly brings the party into disrepute or otherwise infringes its rules sufficiently to justify expulsion through what Rule 25.17 describes as “acts of misconduct” in great detail. The drastic measure of expulsion from the ANC, if it can be successfully effected, would end the membership of the National Assembly of those expelled for voting for the motion instead of against it, thereby siding with those in the ANC who do somehow and on some obscure basis still have confidence in the president. The Constitution, in section 47(3)(c), is clear that upon ceasing to be a member of the party that nominated a person, that person loses membership of the National Assembly. A suspension of an ANC member, pending disciplinary proceedings, does not trigger this mechanism of the Constitution.

Against this uncontroversial backdrop of facts and law, the two burning questions are:

• Whether a vote in favour of the motion of no confidence, given the ructions in high places in the ANC, the attitude of its stalwarts and its Integrity Committee, the Nkandla judgment, the Zuma orchestrated flight of Omar al-Bashir, the State of Capture report by Thuli Madonsela, the purported nuclear deal and other peaks in the mountains of sleaze that surround the president, could possibly lead to successful disciplinary proceedings against ANC MPs who so vote, and if so…
• Whether it is possible to complete the entire disciplinary process in less than 30 days?

The jury is out on the first question; nice legal points arise and will no doubt be argued to death.

The ANC Constitution requires members to “behave honestly” (Rule 5.2.7) which, taken together with their oaths of office, should afford the affected members some comfort. It is by no means certain that the best interests of the ANC are in fact served by voting against the motion of no confidence in the president. It is neither irrational nor unreasonable to vote for the no confidence motion given the circumstances in which parliamentarians will in all probability find themselves on 18 April.

On the second question however, it is plain that duly and fairly contested disciplinary proceedings simply cannot be completed to their final determination on appeal or in court within 30 days.

This seemingly trivial fact puts those in the ANC caucus who vote for the motion of no confidence in the president in a very powerful tactical position. They will all have a vote in the election of the new president after the no confidence motion succeeds. They may, if they so choose, make their support for the ANC candidate in the election of the new president conditional upon their not being disciplined. If the ANC is not prepared to accept this condition, they may then vote with the opposition in the presidential election or abstain.

Against this backdrop, the ultimate and decisive question is whether there are 50 ANC members of the National Assembly who have the courage and the moral rectitude to show more spine than was shown by the craven threesome in the toxic top six who meekly backed down at the first sign of resistance from those who inexplicably remain blindly loyal to the person Barbara Hogan, a former cabinet member, has described as our rogue president.

In the words of a long-standing member of the ANC, Mzukisi Makatse, published by Politicsweb on 6 April:

“The ANC has now lost total control over the government it purports to lead. The ANC officials have been reduced to issuing contradictory statements and kowtowing apologies in defence of the rot that has engulfed the government. We now seem to have a rogue conglomerate of the politico-business axis running the government for their own elite interests. This conglomerate is accountable to no one but itself. It despises all the institutional mechanisms designed to ensure a clean and accountable government, hence the sustained attack on these mechanisms.

“In conclusion and unlike any other time before, the ANC is now faced with the real threat that we, the members and supporters of the ANC, are not going to vote for it in the coming elections if they continue protecting the rogue elements in their midst. I spent more than half of my life in the ANC, but will not spend the rest of it being part of an organisation that protects the worst elements at the expense of itself and the revolution.”

The turmoil in the current stage of establishing of our constitutional democracy is of a kind which requires courageous action by those who lead, including those who populate the back-benches, sworn as they are to be faithful to the country, as they worry about whether or not they will be re-elected when next they face the electorate. Taking a bold stand for the rule of law, for common decency and for the ideals of constitutional democracy ought to boost their popularity with the electorate, irrespective of the party they represent.

Or they can cravenly drink from the buckets of Kool-Aid forced on them by those who irrationally insist on a vote for Jacob Zuma. DM

Paul Hoffman SC is a director of Accountability Now and is the author of Confronting the Corrupt