The well-known jurist, Mr Justice Fikile Mbalula, has rendered judgment.
Opining from the X (previously Twitter) division of the High Court on Monday, in the matter of a contractual dispute between two parties (Cyril Ramaphosa in his capacity as president of SA, and John Steenhuisen, on behalf of the DA), Mbalula J., held: “Clause 19 does not apply to Bills that have already been passed. Legally, clause 19 of the statement of intent would only apply to bills that are proposed/drafted by ministers or [deputy ministers]…”
He further held: “Clause 19 also does not make provision for a reset of bills parties in the GNU do not agree with. That would be unlawful in fact.”
Case closed then, beyond further appeal? Let’s see.
Before joining the issue with a legal eminence of Mbalula’s standing (when he is not moonlighting as secretary-general of the ANC), a few items of legal background are in order.
“Clause 19” is one of 28 clauses in a “statement of intent” signed by Mbalula himself, in his capacity as secretary-general of the ANC on 14 June 2024. The other contracting signatory was Helen Zille on behalf of the DA. Other parties singed on later in the process.
“No one may be a judge in his own cause” is a trite but true legal maxim. Thus, any opinion on the interpretation of an agreement by one of the interested, in this case the signatory parties, is one filter through which to view Mbalula’s pronouncements.
With regards to Clause 19 itself, it states that the government of national unity (GNU) shall take its decisions “in accordance with the established practise of consensus”.
In the event of no consensus being found “then the principle of sufficient consensus shall apply”.
The agreement then further and specifically defines the steps to be undertaken to reach this happy place. It details how all parties need to have an opportunity to express their views, where after “reasonable attempts to resolve agreements and find common ground” must be undertaken.
If, after this process, there is still no “general consensus”, then the deadlock is resolved by an agreement reached by “Parties to the GNU representing 60% of the seats in the National Assembly”.
A final background fact and figure here: of all the parties represented in the GNU, only two of them (ANC with 40% of the seats in Parliament, and DA with 21%) reach this total. They are the deciders in the event of a deadlock.
On the weekend, Steenhuisen informed Ramaphosa that he was invoking this clause in response to the latter’s decision to sign into law, days before, the Expropriation Act and in respect of the National Health Insurance Act, which Ramaphosa enacted before the May election.
Mbalula’s X judgment is then based on his very partisan interpretation that whatever Bills were inked or enacted before the commencement of the GNU last June are not subject to its prescripts or processes. How sustainable is his assertion?
Consensus
First, the entire agreement is silent on the fate and future of legislation enacted before its commencement. However, it explicitly requires the parties to the agreement to “take its decisions in accordance with the practise of consensus”.
Since Ramaphosa sits at the apex of the GNU, he is doubly obligated to follow this injunction, both as leader of the largest party in the GNU and as chief executive of government.
“Consensus” is the most referenced word in the entire agreement and the one most dishonoured in practice since it was inked. On the vexed issue of the Expropriation Act he signed into law last week: four of the contracting parties to the GNU agreement have specifically stated that there is no consensus on its enactment: The DA, Freedom Front Plus, Inkatha Freedom Party and Patriotic Alliance. Whatever else is at play, ‘consensus’ is nowhere in sight.
Even on Mbalula’s contentious interpretation, there was no consensus on Ramaphosa enacting the legislation, far from it. Second, the executive member responsible for its enforcement, public works minister Dean Macpherson, was not advised by the President of his decision to sign the legislation into law (though his deputy was so advised).
On the issue of consultation, Macpherson, some weeks before, sent Ramaphosa a legal opinion that key provisions of the legislation were unconstitutional. Ramaphosa did not engage on the merits of the argument, ignored the minister and enacted the law. There was at no point any engagement by the president with his minister to even discuss the matter.
Note that the same agreement specifically (clause 14) requires “parties will work together in good faith and seek to build consensus where no party has an outright majority”.
Third, if the process summarised above reeks of bad faith, consider further objective breaches of the agreement: for example, it specifically obliged the parties to the GNU to immediately following the government’s formation to hold a “Lekgotla” (strategy session) to develop an agreed policy agenda, which shall include policy priorities for the GNU.
‘Whether you like it, or not’
It is a matter of fact, and further instance of bad faith, that no such lekgotla has been convened seven months after the GNU’s founding (It is arguable that this week’s cabinet breakaway on the government’s medium term plan fits this requirement: let’s see what emerges from it). However, as and when such a policy agenda is ever agreed upon, and indeed with respect to all enactments (past and present) of government, it is not “the national democratic revolution” that will guide and determine policy. This is despite what Ramaphosa pronounced on the weekend.
Instead, the agreement obligates policy and practise of the GNU to be based on – inter alia – “respect for the Constitution”. It also obligates all parties to uphold the principle of “evidence-based policy and decision-making”.
Thus, for example in respect of the hugely contested NHI, a welter of evidence suggests it is unaffordable, unconstitutional and contra “fiscal sustainability” (another requirement of the agreement). Yet, Ramaphosa blithely announces that NHI will be implemented “whether you like it or not” and his health minister declares himself to be at “war” with the civil society partners who are also referenced in the agreement.
One could go on, but I will spare readers the grim detail of how the “agreement” of 14 June 2024 solemnly signed by Mbalula has, in its essential elements, been honoured only in its breach. To be fair to Mbalula, though, even before he signed the agreement, he gave voice to his real view of the state of play (or “balance of forces” in his preferred jargonese).
Once again, his true intention was revealed on X (Twitter) rather than in any solemnly signed agreement. Last June, in the midst the negotiations on the GNU, he posted:
When this social media post was raised during the negotiation process, ANC negotiators downplayed its significance and urged negotiating parties to focus on a draft agreement, not the rhetoric on X. Since the agreement circumscribed the one-party triumphalism of the post, parties assumed the agreement trumped the rhetoric.
This has, by the course of recent events, proved to be misplaced. It seems very clear that the Mbalula and the ANC signed the agreement not with the intention of being bound or limited by their commitments under it. Rather it was viewed apparently as the means of ensuring the election (on the same day, indeed same hour as the agreement was signed) of Ramaphosa as president.
Without the votes of the DA his election was imperilled. The agreement itself, in the light of its serial breaches by the major contracting party, recalls the imperishable words of my old legal mentor Philip Pencharz on a dodgy client: “He regards the written and signed agreement simply as the basis of further negotiation!”
To quote another ANC fave, VI Lenin: “What’s to be done?”
Quite a lot it seems if the GNU is to continue intact. Since Mbalula is fond of judging what is and isn’t legal, he might have recourse to the principles of the law of partnership. Since the GNU is effectively a voluntary partnership between several parties, he might recall that the basis of any such partnership is the principle of ‘utmost good faith.’
There has been little sign of that in recent times. When that changes, all things become possible. Without good faith, none are.
The alternatives to the GNU’s continuance are very dire for the country, its economy and its standing in a very complex and fraught world. To quote one of the contracting parties to the GNU: “It needs a reset.” Indeed, it does.
