DA may have just bought itself a new tale of woe

The crafting of Tuesday’s agreement between Helen Zille and the party leaves its implementation entirely at the mercy of her goodwill, argues Jan-Jan Joubert

THE relief was palpable this week in the passages of the Marks Building in Cape Town, where those whose work universe is the DA toil when parliament is in session.

The biggest crisis in the DA in 16 years (since the New National Party leadership jumped ship to join the ANC, setting opposition growth back 10 years) had been averted. Wayward Western Cape premier Helen Zille had been brought to heel.

As one of the DA faithful central to the seeming denouement told me this week: “I’d not like to speak on this matter at all. The DA has moved on, the matter is closed.”

History is filled with political agreements reached with undue haste and faith, where politicians are so glad to have solved the immediate disagreement that the underlying weaknesses are not reckoned with.

Consider these two agreements from South African party-political history:

The first was the agreement in the Fusion government of the 1930s to disagree on whether the country was bound to participate in a war Britain was involved in. This led to the dissolution of that government in 1939.

The second was the agreement between the Democratic Party, Federal Alliance and NNP leaderships in 2000 to form the DA, where NNP leader Marthinus van Schalkwyk’s line function and the ground rules for the first elective congress were not clearly laid down. The champagne that popped in 2000 had soured by 2001 because everyone was so keen for an agreement that they did not consider its weaknesses.

In both the Fusion and DA cases, the weaknesses in the agreements are clear in hindsight. Those who pointed them out at the time — and those certainly existed — were branded killjoys when they voiced their concerns, but their caution was justified by subsequent events.

In the case of this week’s agreement between Zille and DA leader Mmusi Maimane — announced at a press conference with all the warmth, sincerity and affection of a meeting between Barack Obama and Donald Trump — three major weaknesses are plain for all to see, were they to rise above the immediate fixation to blithely “move on”.

The first is that none of the terms of the agreement is defined. Maimane announced that Zille had agreed that “her political communication from this point onward will focus on matters relating to the Western Cape provincial government where she will remain premier. If she wishes to communicate on any other political issues, she will abide by the sign-off protocols of the Democratic Alliance.”

But who decides when a matter “relates to the Western Cape government” and when it becomes “any other political issues”? What happens if Zille views it as the former, and someone else views it as the latter? Who is the arbiter, and at what point? How is the matter settled? How does it not become exactly the damaging, drawn-out affair we have seen over the past three months?

It all seems to hinge on Zille’s goodwill. Given the content of the legal arguments she served on the party as recently as 10 days ago, and of her public utterances in speeches and articles since the spat on colonialism began in March, some might find that sufficient but surely not all.

The second weakness is that the agreement contains no sanction were Zille to break it in any way. This is the weakest point in the whole set-up. It is a basic principle of Roman Dutch law that there can be no rule without sanction, yet this is precisely what has been crafted here.

What happens to Zille if she breaks the agreement? Who decides whether she broke the agreement? As in the matter of terminology, it seems to depend on her benevolence, precious little of which was on show when she dealt with “her” party — interpret that possessive pronoun however you may — over the past three months.

The absence of specific sanction leaves the agreement at her mercy and held to her ransom, with the only recourse being the general sanction before the party’s federal legal commission, which has failed rather dismally to resolve the colonialism issue without damage since March.

The third weakness is not as important as the first two, but concerns an argument loudly and continuously raised in her defence by her supporters — and which she has never corrected. It is the question whether limiting public tweets impedes upon freedom of speech.

Surely it is not a matter of freedom of speech, but rather an issue of freedom of association.

Anyone who joins a voluntary organisation — a political party, or the Girl Guides, or a bowling club, for that matter — places other freedoms under the relative constraint of freedom of association, and of the choice to associate.

That important issue, which may very well raise its head in similar or different circumstances, was not addressed at all in Tuesday’s agreement. Maybe it will be addressed at another point.

It is clear that Tuesday’s agreement will last if Zille acts with goodwill and benevolence, and bows to the future will of the DA leadership.

Its loose crafting means, however, that were she not to act benevolently, it would trigger precisely the process it has been created to avoid.

Three major weaknesses in this week’s agreement are plain for all to see