It was a turn­ing point in postapartheid SA pol­i­tics. What was ev­i­dent at the Con­sti­tu­tional Court on Tues­day is that the ANC, which gave us the Con­sti­tu­tion, is now its de­baser, rather than its pro­tec­tor. But look at what the EFF did in Par­lia­ment two day

CityPress - - Front Page - BY MARK GE­VISSER

If the pro­ceed­ings at Thurs­day’s state of the na­tion ad­dress (Sona) were political theatre, and if the ac­tors were “play­ing to the gallery”, then the two prin­ci­pals – Ja­cob Zuma and Julius Malema – must have been play­ing to one mem­ber of the au­di­ence in par­tic­u­lar: Mo­go­eng Mo­go­eng, the chief jus­tice, sit­ting in the gallery of the Na­tional As­sem­bly. For it is Mo­go­eng’s court that will rule, im­mi­nently, on whether Zuma has vi­o­lated not just the Con­sti­tu­tion but his oath of of­fice in de­fy­ing the Pub­lic Pro­tec­tor’s find­ing that he must re­pay the fis­cus for some of the im­prove­ments to his pri­vate home at Nkandla.

In the nor­mal or­der of things, the judges’ de­lib­er­a­tions should not be swayed, in any way, by the kind of political theatre we wit­nessed on Thurs­day night: the cal­cu­lated con­tempt that Malema’s Eco­nomic Free­dom Fight­ers (EFF) showed to­wards both “Zupta” and the leg­is­la­ture’s of­fice bear­ers, on the one hand, and the per­for­mance of an en­gaged and re­spon­sive head of state who “lis­tens” to busi­ness­men and Marabas­tad com­muters alike, on the other.

But in an ex­tra­or­di­nary ap­peal to the Con­sti­tu­tional Court on Tues­day, Zuma’s coun­sel, Jeremy Gauntlett, urged the judges to make a rul­ing based on pol­i­tics, rather than law, in de­cid­ing on whether to cen­sure the pres­i­dent. Gauntlett did this by con­ced­ing, im­me­di­ately, that not only would Zuma pay for the nonessen­tial im­prove­ments to his prop­erty, but he had been wrong in re­fus­ing to ac­cept Thuli Madon­sela’s find­ings against him as bind­ing, and in us­ing both his ex­ec­u­tive and Par­lia­ment to se­cond-guess her. Gauntlett’s pri­mary con­cern – and thus, we can as­sume, that of his client – was that the court should not al­low it­self to be “in­vei­gled” into mak­ing “some form of wide, con­dem­na­tory or­der” which would be used to im­peach Zuma.

Such a judg­ment could desta­bilise the coun­try, given that this “is a del­i­cate time, in a dan­ger­ous year”.

Gauntlett seemed to be urg­ing the judges to look up at the thug­gish heav­ies in dark glasses sur­round­ing their blunt com­man­der in chief, and to re­alise that they risked be­ing used by th­ese dem­a­gogic pop­ulists to bring about rev­o­lu­tion. You will be in Par­lia­ment in two days’ time, he was say­ing to Mo­go­eng and his Bench: look at how th­ese chil­dren be­have, and weigh it against the power that the Con­sti­tu­tion – and the elec­torate – have vested in my client.

The ANC has of­ten sought to por­tray the EFF as “bar­bar­ians at the gate”, rab­ble who do not re­spect the rule of law, or the laws of Par­lia­ment. This was clear, once more, in the school­marmish ca­dences of Speaker Baleka Mbete and the more au­thor­i­ta­tive boom of Na­tional Coun­cil of Provinces chair­per­son Thandi Modise on Thurs­day. In­ter­est­ingly, on Thurs­day night, per­haps mind­ful of the chief jus­tice in the gallery, the EFF par­lia­men­tar­i­ans backed down, and left vol­un­tar­ily: they had per­haps reck­oned that it would not suit their cause, or their case, if they were to be seen en­gaged in vi­o­lent con­fronta­tion with Par­lia­ment’s se­cu­rity de­tail.

They nev­er­the­less ap­peared to be clear about their con­tempt: “Zuma is no longer a pres­i­dent that de­serves re­spect from any­one,” Malema cried. “He has stolen from us. He has col­lapsed the econ­omy of South Africa. He has made this coun­try a joke, and af­ter that he has laughed at us ... He is not our pres­i­dent. Zupta must fall!”

A sur­prise player in Thurs­day night’s theatre, the Congress of the Peo­ple’s Mo­sioua Lekota, put it more crisply when he walked out: Zuma was “no longer honourable” be­cause he had bro­ken his oath of of­fice by ly­ing about Nkandla.

Given how de­based the phrase ‘honourable mem­ber’ has be­come, in the now an­nual far­ci­cal dis­rup­tive pre­lude to Sona, Lekota’s state­ment hits home.

And this is the point, and the fun­da­men­tal weak­ness in Gauntlett’s ar­gu­ment and Pres­i­dent Zuma’s po­si­tion. Even if Zuma did man­age to be “pres­i­den­tial” in his speech once his an­tag­o­nists had left the House, his own ac­tions – ad­mit­ted in his con­ces­sions to the Con­sti­tu­tional Court two days pre­vi­ously – had shown him up, in­con­tro­vert­ibly, to be the one who is de­bas­ing our democ­racy and its in­sti­tu­tions. Nowhere was this clearer than in the way Gauntlett con­ceded the wrong-head­ed­ness of the at­tempts of both Zuma’s Cab­i­net and Par­lia­ment to se­cond-guess and dis­credit the Pub­lic Pro­tec­tor.

This truth was most painfully man­i­fest in the way the court grilled Mbete’s coun­sel, Lindi Nkosi-Thomas, and forced her to con­cede that Par­lia­ment had been wrong in try­ing to over­ride the con­sti­tu­tional pow­ers of the Pub­lic Pro­tec­tor. Zuma had mis­led and abused not only his own com­rades, but Par­lia­ment it­self, the very in­sti­tu­tion set up to watch over him; this Par­lia­ment, too, had be­come dis­hon­ourable in al­low­ing it­self to be used in this way.

Zuma’s con­ces­sion in the court, in the face of the ev­i­dence against him, re­ally was a case of too lit­tle, too late. And so Gauntlett’s call for a political con­sid­er­a­tion on the part of the court was noth­ing short of des­per­ate. Be­cause the truth is that, even if the court does not to is­sue an or­der declar­ing that Zuma vi­o­lated his oath of of­fice, th­ese vi­o­la­tions have in ef­fect al­ready been proven by Zuma’s con­ces­sions. The dam­age is done, even if Zuma’s hold over the gov­ern­ing party is still so strong that his com­rades can­not ef­fect a re­call of him, as they once did to his pre­de­ces­sor, Thabo Mbeki.

And so, at Con­sti­tu­tion Hill on Tues­day, we had the un­ex­pected spec­ta­cle of Zuma, the pres­i­dent of this coun­try, ask­ing the court to make a political rul­ing on his be­half, while we had the sup­posed “rab­ble” – the EFF – ex­pertly ar­gu­ing the law through its coun­sel, Wim Tren­gove, in al­liance with the more “re­spectable” DA.

It was a key turn­ing point in post-apartheid South African pol­i­tics. The ANC, which gave us the Con­sti­tu­tion, is now its de­baser, rather than its pro­tec­tor. Zuma and the toad­ies who con­tinue to pro­tect him are the real bar­bar­ians at the gate, even if the vest­ments of power al­low them to present them­selves, still, as the es­tab­lish­ment – and even if good men, such as Pravin Gord­han, are com­pelled to work with them to keep our coun­try on track.

Does this mean that the party of Oliver Tambo, Nelson Man­dela and Mbeki has handed over the ba­ton, as the cus­to­di­ans of our democ­racy, to Julius Malema?

In the way it has used the le­gal sys­tem against Zuma, the EFF has un­doubt­edly strength­ened our democ­racy. And Malema has be­come, in the process, what the an­a­lyst Su­san Booy­sen calls an “ac­ci­den­tal con­sti­tu­tion­al­ist”. An­other an­a­lyst, Steven Fried­man, makes the salient point that the EFF tri­umphed this week by us­ing the sys­tem rather than by dis­rupt­ing it: go­ing to the courts proved much more ef­fec­tive in get­ting Zuma to “pay back the money” than stand­ing up and scream­ing in Par­lia­ment was.

Given Malema’s be­hav­iour – even last week, in his threats to ANN7 jour­nal­ists and his xeno­pho­bic ut­ter­ances on the Gup­tas – we have ev­ery rea­son to be scep­ti­cal of his re­cent em­brace of con­sti­tu­tion­al­ism. But one of the rea­sons the EFF has proven so ef­fec­tive in set­ting the agenda of South African pol­i­tics is that it is prov­ing it­self to be im­mensely cre­ative, con­stantly adapt­ing it­self to its grow­ing elec­torate, both among poor peo­ple and pro­fes­sion­als, and to new fields of en­gage­ment as they present them­selves.

Even in the way the EFF par­lia­men­tar­i­ans com­ported them­selves in the House on Thurs­day, there was, it seemed, the con­flict­ing pull of two op­po­site im­pulses: to dis­rupt or to be law-abid­ing. Why even pre­tend to be con­cerned about the rules of the House if you have al­ready proven, two days pre­vi­ously, that the House it­self is de­serv­ing of your con­tempt, and that the man about to ad­dress it is in vi­o­la­tion of the Con­sti­tu­tion and his oath of of­fice? Why not just walk out, neatly and clearly, as Lekota did, or de­cide to stay and lis­ten, as Mmusi Maimane did?

If you are true rev­o­lu­tion­ar­ies, why not push things to their log­i­cal con­clu­sion and refuse to leave? Why not pro­voke vi­o­lence, so you can show your­selves to be the vic­tims of state sup­pres­sion, and dis­rupt things to the max­i­mum?

Is it be­cause Malema and his team cal­cu­lated that their strat­egy was the one best poised to win them more votes? Or is it be­cause – par­tic­u­larly af­ter their Tues­day vic­tory – they are in new ter­ri­tory and still fig­ur­ing out how to deal with it? The EFF lead­ers want to be fer­vent rev­o­lu­tion­ar­ies, at the bar­ri­cades in their red berets. But they also want to be the cus­to­di­ans of our Con­sti­tu­tion, and they have seen how this works in their favour. How they bal­ance th­ese two roles will de­ter­mine our na­tional pol­i­tics in the months and years to come.


From left: EFF leader Julius Malema, Ad­vo­cate Jeremy Gauntlett, Pub­lic Pro­tec­tor Thuli Madon­sela, Pres­i­dent Ja­cob Zuma and Chief Jus­tice Mo­go­eng Mo­go­eng

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