Ace: Ramaphosa has lost his moral alibi

Jeremy Gordin says the President can no longer lay-off responsibility for all the RET-legislation before parliament

What do you think about Ace Magashule?

Probably you don’t think about him at all ... No offence to Magashule (an issue to which we’ll return below), but even I can think of more pleasant people on whom to cogitate.

Still, Magashule was, or maybe still is (I find it hard to tell), Secretary-General of the mighty ANC – until he was suspended (on full salary and other appurtenances) for refusing to step aside from his post, even though he’d been charged with fraud, theft, corruption, and money laundering. (At the ANC’s 2017 Nasrec policy conference, a decision was taken that those charged with corruption must voluntarily step aside.)

Then Magashule, as you know, bethought himself, “I’ll show you suspension,” and he suspended the ANC president and president of the Republic, Cyril Ramaphosa, on May 3.

When this was found wanting by the ANC, he refused to apologise, which was silly – we’re big on apologies in the beloved Republic and almost all might have been forgiven, at least by the ANC.

Instead Magashule has now applied on an urgent basis to the High Court (the matter will be “aired” on June 1) to have his suspension by the ANC overturned.

Even though I’m an unashamed Wim Trengove SC supporter (he’s representing the ANC in the matter) and an unrepentant Dali Mpofu SC detractor (he’s representing Magashule), I’m not betting on the outcome.

The reason for my timidity is that what seems to be the central issue – the “lawfulness” of the ANC’s constitution versus the country’s Constitution – seems to me to be a bit open to, er, different interpretations.

Besides, I’m not even certain that the court will consider the matter “urgent”. They can be funny people, these judges, as former president Jacob Zuma once remarked to me.

But I digress. When I asked what you think about Magashule, I was wondering more about whether you – like so many people – are thinking the following two things.

The first is that, whether he succeeds in his court venture or not, Magashule seems washed up, finished, and that therefore his whole RET (Radical Economic Transformation) faction, the existence of which the media keeps telling us about, is beaten too. 

Magashule huffed and he puffed and had his fit of pique, but no one especially powerful came rushing to his aid, and Ramaphosa seems to have won the day.

And the second thought, flowing from the first, is the belief that if Ramaphosa has at last turned out victorious, then the good guy is finally in the pound seats, and things will get better for the country.

But will they? ___STEADY_PAYWALL___

I hate to be a Jeremiah, a killjoy, a death’s head at a feast, and all the rest, but it is worth observing that a number of wicked beasts are currently slouching through parliament to be born.

First, there’s the incoming Employment Equity Amendment Bill, which is “aimed at expediting the pace of transformation and addressing non-compliance with the requirements of the Employment Equity Act, 1998 (EEA) in South Africa”.

What this means, in (I hope) simpler English, is that harsher measures are to be implemented to speed up demographic representivity/“transformation” in the private sector, i.e., against employers who do not meet racial or gender quota targets [1].

In short, if a business does not have the “right” number of black people employed, it’s out in the cold. What’s more, in terms of the proposed amendments, the Minister of Employment and Labour, Thulas Nxesi, can fix the numerical targets in any sector of the economy (i.e., tell any business what its correct quota must be), penalize a business if it hasn’t got the correct quota, render irrelevant any (yet still compulsory) discussions an employer might have held with its own employees and trade union representatives, and render it impossible for an offending company to do any business with the state.

Second, there’s our old friend, the 2020 Expropriation Bill/ amendment of Section 25 of the Constitution. This Bill lists five circumstances under which “nil compensation” (zero) could be paid when property is expropriated; offers government almost extensive and undefined powers to expropriate virtually any form of property, including intangible property such as copyrighted and patented material; lacks clear definition in a number of areas; and contains no clear definition of a proper public consultation process.

And, according to a recent article by Anthea Jeffery, the Bill could get even worse: the role of courts in deciding on “nil compensation” could be limited; the “nil compensation” provision could apply from land to property of all kinds; and the State could be made the custodian of all land, as the EFF continues to demand [2].

Third, as a cherry on the top, there is the Department of Justice’s recently published Promotion of Equality and Prevention of Unfair Discrimination Act (4 of 2000, known as PEPUDA) amendment Bill.

To cut a long story a little shorter, and using some of advocate Mark Oppenheimer’s words, PEPUDA will have a number of “terrifying” consequences. First, it will redefine the terms “equality” and “discrimination”. Second, it will create liability for even unintentional acts or omissions.

So, even if I, in my second paragraph above, intended no offence to Magashule (which of course I didn’t), I and Politicsweb could get into trouble for undermining Magashule’s dignity.

Politicsweb could get into trouble as well because another effect of PEPUDA is to make people vicariously liable for contraventions of the Act (including discrimination, hate speech, and harassment) “performed” by their workers, employees, or agents.

Additionally, in terms of PEPUDA, a series of hefty obligations will be placed on NGOS, traditional leaders and institutions, community organisations, and those contracting with the State – the Executive will be empowered to create “codes” to regulate these sectors, i.e., government ministers will be empowered to discriminate between people, companies, and organisations in terms of whether these conform to the newly proposed definitions of equality and discrimination.

Welcome to Stalinist Utopia, folks. And back to Magashule and Ramaphosa.

In response to my article about Israel/Palestine last week, Politicsweb reader Peter Watermeyer commented: “Of course ‘the centre is not holding’. It never could. The country is held together by its enemies”.

There’s a thing. I now partially agree with Watermeyer – and I also think that, as long as Magashule was around, he was a convenient bogeyman for us all – and a moral alibi for Ramaphosa. Despite everything that has occurred under his presidency, Ramaphosa’s reputation, in other words, has been held together by his enemies.

“Cyril has to deal with people like Magashule, that’s why he can’t do the things we know really he wants to do, and why he is letting these destructive amendment laws make their way through parliament, and (on occasion) publicly supporting them” is what many of us have been saying to ourselves, sometimes without even realising it.

So now that Magashule is apparently yesterday’s man, what now? What will Ramaphosa do with his apparent new ascendancy?

He has a choice. He can allow these wicked beasts to carry on to their ultimate destination. But from this point onwards, he will morally and politically “own” them, and the consequences.

Or he can intervene to scupper the three proposed amendment bills, before they make their way into law, and bury South Africa and its future.

Don’t hold your breath.


[1] A nice example of how quotas and “transformation” can (and does) work was Minister of Tourism Mmamoloko Kubayi-Ngubane’s decision during lockdown that race criteria would determine which tourism sector businesses would receive state-sponsored Covid-19 relief bailouts. There were strenuous legal objections to this decision, but the learned Judge Jody Kollapen ruled that the minister was within her rights.

[2] As the FW de Klerk foundation has noted, “The Expropriation Bill poses a serious threat to property rights which are a core requirement for all free and prosperous societies. Section 25 of the Constitution (the property clause), as currently worded, constitutes a proper framework for an effective process of land reform. The payment of fair and equitable compensation for expropriated property is not the main impediment to land reform. Rather, it is, in the view of the High-Level Panel chaired by former President [Kgalema] Motlanthe, the inefficiency, corruption, and lack of resources of the responsible government departments”.