Eventually there was a GNU.
The announcement was made by a rather lacklustre Cyril Ramaphosa almost two weeks ago. As he started, one could see where this was headed – big government. Because, like an Oprah Winfrey show, everyone had to get something ministerial. One wants to ask, why? Is the only way to make a country work effectively done via a Cabinet position?
But Ramaphosa accommodated everyone, including recycling Patricia de Lille, who has more political lives than the proverbial cat.
Apart from splitting ministries which created the bloatedness, we heard that Gwede Mantashe would remain and Public Enterprises would now sit in the Presidency. An interesting move, doubtless to ensure that the ANC remains in control of state-owned enterprises.
We all know why Mantashe could not go despite his disastrous record. It’s the old chestnut of internal ANC dynamics (and the ANC is not chastened even at 40%, it seems) and Ramaphosa trying to retain the crown which rests somewhat uneasily.
We know there was as much horse-trading among the ANC factions as there was with the DA and other parties, including bit players like Gayton McKenzie making threats on the sidelines.
On this, quite why Ramaphosa elevated McKenzie to the position of minister of sports, arts and culture beggars belief. Here is someone with openly xenophobic views who plays consistently to the lowest common denominator and people’s base instincts. Why would it be appropriate to have him speak about the arts and culture which requires a broadness not a narrowness of mind?
Like many ministers before him this portfolio has become a burial ground for the no-longer-useful politician or, in McKenzie’s case, to placate those who may be more dangerous outside than inside the tent. Ministerial positions have a way of silencing irritants.
There is a danger, however, that McKenzie’s xenophobic hate will be forgotten in the bonhomie of his social media account where he now provides updates of his daily exercise routine.
McKenzie even cracked a joke with Chief Justice Raymond Zondo about his prison record. And the crowd laughed, as if at a Roman circus.
It’s saddening because arts, culture and sport, of course, are key to healthy minds and a thoughtful, cohesive society. Some intellectual heart would have been welcome. Instead we are stuck with the tragicomedy that is Gayton McKenzie.
Given where we could have been, it does seem churlish to complain too much about McKenzie. In all, there has been accommodation and a civility about the GNU which is welcome (leaving aside frothing Helen Zille). It could have been so different. But our institutions have held up even during this tricky election period and South Africans got on with the business of living – or eking out a living in many instances.
We can be proud and relieved. On our worst days (more about that later) it is worth remembering that our young democracy has now seen the peaceful transfer of power in yet another election and that the sky did not fall when the ANC lost its majority, even though we know there will be difficulties ahead. This country is in every way at once an exhilarating and nervy experiment.
Ministers seem to be busying themselves on social media, in particular the “DA ministers”. This is not an easy country to live in, let alone to run. The newbies will come up against recalcitrant bureaucrats, a feckless ANC and an array of other challenges which will require skilful navigation.
So when Minister in the Presidency Khumbudzo Ntshavheni spoke recently, one’s ears pricked up. She had a few things to say about ministers implementing policy and making pronouncements: “Whoever said ‘this is the policy I’m going to implement’ – no. Whoever said ‘this is the priority I’m going to implement’ – no…
“It should be stressed that both the President and individual ministers are duty bound to take to the Cabinet issues of policy [and] significant decisions,” she said. “Failure to do so could undermine the validity of such a decision.”
While the constitutional notion of collective responsibility as outlined in s92(1) of the Constitution is understandable, there are tea leaves to be read here.
S 92(1) says “the Deputy President and Ministers are responsible for the powers and functions of the executive assigned to them by the President. (2) Members of the Cabinet are accountable collectively and individually to Parliament for the exercise of their powers and the performance of their functions.”
And while the GNU of necessity needs to prioritise policy areas, one must ask where this fierce commitment to “collective Cabinet responsibility” was during, say Mantashe’s tenure as minister of mineral resources and energy? On this basis, Mantashe ought to have been fired years ago. He has openly flouted the President and policy on energy.
But we all know what she really meant is: ministers who are not of the ANC should not tell the ANC what to do.
A GNU will require strong leadership around clear priorities. These priorities are self-evident in a country like ours but there are different ways of getting there. And therein lies the rub. Ramaphosa will need to lead firmly and with conviction.
If neither the ANC nor the DA want to suffer a diminished electoral fate at the local government elections, further splintering our politics, the GNU must be coherent across all levels of government or it will be a contradictory mess.
But equally for the GNU to work, there need to be thoughtful interlocutors. Ntshavheni is not that person unfortunately. And neither is Zille.
Ntshavheni came up with this further gem, when asked about the size of the Cabinet: “The electorate chose an outcome that landed us in a government of national unity. So the electorate will also have to bear and accept the responsibility for what they gave us. For us to make lemonade from the lemons, there is a cost to it, and that cost will have to be carried. It’s a new normal.”
Blaming the electorate seems an unsound and tone-deaf approach. What Ntshavheni does not seem to understand (as often happens with those in power who cut themselves off from ordinary people; in Gauteng, premier Panyaza Lesufi has also yet to hear the electorate clearly) is that South Africans were simply tired of the ANC, its arrogance, its corruption and its inability to transcend destructive internal factionalism.
Around the world we have seen considerable backlash against incumbent governments. The ANC itself was a victim of this. Ntshavheni would do well to introspect just a little before blaming the electorate to whom she owes her job.
The GNU’s first major misstep
For the GNU to work properly it will need to make decisions based on constitutional principles and Ramaphosa will need to make this a sine qua non of his administration. Because as if there can be no peaceful moment that lasts forever in South Africa, the past days in Parliament have provided an unhelpful template for the future of the GNU.
The Judicial Service Commission (JSC) is an obvious site of contestation and plays a central role in the appointment of judges. Bearing in mind the extensive powers vested in the judiciary under the Constitution, it is no exaggeration to say that the work of the JSC is therefore crucial to the rule of law and constitutional democracy in South Africa.
The JSC has been criticised frequently for failing to carry out its constitutional mandate properly, and it has on several occasions been found to have acted unlawfully by the courts. To give two recent examples of constitutional challenges to the JSC’s processes, the JSC reran interviews for a vacancy on the Constitutional Court when faced with the prospect of litigation by the Council for the Advancement of the South African Constitution (Casac). In 2023, Freedom Under Law instituted litigation to challenge the JSC’s failure to fill vacancies on the Supreme Court of Appeal.
This litigation remains ongoing. Several areas of concern over how the JSC has performed in fulfilling its constitutional mandate, including the abuse of public interviews for inappropriate purposes, have been highlighted repeatedly.
In light of this context, it is vital that those individuals designated to serve on the JSC have themselves demonstrated a commitment to upholding constitutional democracy, the rule of law and the independence of the judiciary.
On 2 July 2024, six civil society organisations – Freedom Under Law, Judges Matter, the Ahmed Kathrada Foundation, Defend our Democracy, Casac and the Helen Suzman Foundation – wrote to Parliament following the nomination by the MK party of disgraced and impeached judge John Hlophe as its candidate for the JSC.
That letter read, in part: “The finding of gross misconduct was made by the JSC itself, and confirmed by the Courts, which dismissed Hlophe’s claims that the JSC had acted ultra vires, had acted unconstitutionally, and that it lacked impartiality.
“Designating an individual to the JSC who has been found by the very body in question to have committed gross misconduct and has been removed from a position as a judicial officer to play a role in the selection of other judicial officers would be completely inappropriate. It would be irrational and, in our view, susceptible to legal challenge, and it would undermine public confidence in the judicial appointments process, and thereby in the judiciary.”
The full letter can be found here.
After a postponed vote last week, Hlophe has now been appointed to the JSC. Quite how the ANC justified voting for him is beyond the realm of understanding.
The argument is that since Hlophe is an MP, well, he is able to serve on any committee. Questions of process arise after the vote: why was a division not called in Parliament on Tuesday and a vote taken on Hlophe’s nomination? Where was the normal three-line whip for matters like these? Or, is the ANC so divided that the Chief Whip cannot trust his MPs not to “go rogue”? This spells trouble ahead if this is the case.
Julius Malema and Hlophe will be a toxic mix on the JSC. The institution has already been hobbled (perhaps a gross understatement) by the influence of Malema in the past. That was evident in the interviews of candidate David Unterhalter, to mention but one.
Hlophe’s commitment to the Constitution is obviously questionable even as he swears allegiance to it as an MP. He broke his oath as a judge, after all.
Subsequently he has upped the ante by consistently playing a tired race card to distract from his own ethical shortcomings. In all this he has been aided and abetted by the likes of dubious parts of the media, fly-by-night civil society organisations as well as unprincipled politicians like Malema and Jacob Zuma.
They now form a shameless bloc against any form of progress to improve the functioning of the JSC and appoint the very best to the Bench. Hlophe and his supporters represent an existential threat to the rule of law and the credibility of a constitutional institution like the JSC.
Hlophe himself has regularly been peddling anti-intellectual nonsense about Roman-Dutch law and its place in our law. Hlophe knows he is being intellectually dishonest, like all snake-oil salesmen do. His supporters follow the tropes blindly even as some have absolutely no idea quite how Roman-Dutch law impedes the administration of justice. But the narrative is dangerous and powerful.
That the ANC chose not to object to his candidacy lays bare the challenges this GNU will face. Ramaphosa, in typical style, has constituted the GNU and has left most other matters, like Parliament, to chance.
Paul Mashatile, as deputy president, is the leader of government business and the link between the President and Parliament. The politics involved in that relationship are obvious and they permeate Parliament and the ANC caucus. Hence this entirely contradictory view on Hlophe whose impeachment the ANC voted in favour of.
But Ramaphosa will wash his hands of the matter given his own precarious political position. We can expect more of the same contradictions.
Freedom Under Law (FUL), in a statement objecting to Hlophe’s membership of the JSC, said: “All parties who did not object to the nomination today are, by their silence, implicated in this egregious decision. The designation of members of the National Assembly to the JSC is not equivalent to assigning members to portfolio committees within the assembly.
“The Constitution requires organs of state to assist and protect the courts to ensure their independence, impartiality, dignity, accessibility, and effectiveness. By designating an individual who has been found unfit to be a judge to the body responsible for the selection of judges, the National Assembly has fallen short of this duty.
“FUL will be challenging Dr Hlophe's designation as a member of the JSC on rationality and rule of law grounds.”
As Joseph Cotterill, former Financial Times southern Africa correspondent and now the FT’s emerging markets correspondent, said of the formation of the GNU, “so far SA’s political centre is crossing the river by touching the stones”.
For our country to have any hope of thriving, these touchstones have to be constitutionalism and the rule of law.
Hlophe was an early test for the GNU and its commitment to the rule of law. And the ANC has failed it. DM