It could not have hurt that the verdict was delivered by a confident and in charge Cyril Ramaphosa, who reminded us again why so many of us have regretted the fact that he lost out to Thabo Mbeki when Mandela’s ANC had to appoint a Deputy President and why some of us still wistfully wonder what might have been if he had become our President instead of either Thabo Mbeki or Jacob Zuma.

Although some newspaper editors might miss Malema (given the fact that he has the ability to make news and sell newspapers), most of us might feel slightly relieved that this hypocritical demagogue has been dealt with so effectively and seemingly so decisively by the ANC senior leadership.

Yet, there is something about the way in which Jacob Zuma and Gwede Mantashe managed to clip Malema’s wings that sits uneasy with me. If they could do it to him, I wonder, could they do it to anyone else – including every single one of us who are members of the chattering classes and sometimes mock or criticise our dancing and singing President and every single ANC member who fails to toe the party line or who speaks out against the abuse of power or incompetence by some members of the leadership?

Is there not just a whiff of Stalinism about the way in which Zuma and Matashe got rid of a political enemy? Can we expect the pictures to be airbrushed next so that Malema will disappear completely from official ANC history?

Recall that Malema was convicted on three charges, two of them having been confirmed by the NDCA. First, he was convicted of contravening Rule 25.5 (1) of the ANC Constitution “by behaving in such a way as to provoke serious divisions or a breakdown of unity in the organisation”. His sin was that he addressed a press conference on 31 July 2011 at the conclusion of an ANC Youth League NEC meeting where he said amongst other things “in the past we know President Mbeki used that agenda very well …. The African agenda is no longer a priority and we think that there is a temptation by the coloniser and the imperialist to want to recolonise Africa in a different but sophisticated way and President Mbeki stood directly opposed to that type of conduct.”

The NDC found that through his utterances Malema sought to portray the ANC government and its leadership under President Zuma in a negative light which therefore had the potential to sow division and disunity in the ANC. The NDCA confirmed the reasoning of the NDC. The implications of this verdict are rather stark. Any ANC member who now suggests that an out of favour former President may have done some good and that he might have been better than an incumbent leader can now be kicked out of the Party for contravening Rule 25.5(1). If this principle had been applied consistently in the past, Mbeki would have been able to get rid of Zuma and most of his opponents long before the votes were counted at Polokwane. To his credit, he never used such tactics against them.

The verdict comes perilously close to suggesting that no ANC member will henceforth be allowed ever to criticise the incumbent ANC leadership in public. This is a rather handy precedent to set if one intends to stand for a second (or third) term in office or if one wishes to “manage” future leadership elections. To my mind the ruling on this point seems profoundly undemocratic and deeply dangerous and both ANC members and other members of the public should feel more than a bit worried about this move. One should not confuse approval for the outcome of this case (silencing Malema) with what is good for the ANC and South Africa and if one does, one underestimates the possible ruthlessness of the current bunch of ANC leaders aiming to secure a second term for themselves at Mangaung.

Malema was also convicted of contravening Rule 25.5 (c) of the Constitution of the ANC by behaving in such a way as to bring the organisation into disrepute. This was done for ostensibly slightly more plausible reasons, namely because he addressed a press conference on 31 July 2011 by making announcements amongst others:

• That the Botswana leadership of government poses a serious threat to Africa so we need a progressive government in Botswana;
• We are not going to sit with neighbours that conduct themselves like that. Botswana is in full co-operation with imperialists and the government is undermining the African agenda;
• The ANC Youth League would establish a Botswana Command Team which would work towards uniting all opposition forces in Botswana to oppose the puppet regime of Botswana led by the Botswana Democratic Party.

Now, imagine, for a moment that the statement did not relate to Botswana but to Zimbabwe and that Zwelenzima Vavi had made it and not Malema. Imagine Vavi had said that Robert Mugabe and his Zanu-PF had ruined Zimbabwe and that Cosatu would mobilise ANC members to oppose the murderous regime in Zimbabwe and to unite opposition forces in that country to try and oust Mugabe. If the Zuma and Mantashe had then proceeded to discipline Vavi and if he was then suspended from the ANC, would we all be cheering this on as we are doing with the Malema case?

Surely ordinary ANC members (yes, also those who helped to get rid of Thabo Mbeki at Polokwane, ostensibly because of his dictatorial tendencies) should feel more than a bit uncomfortable by the manner in which Malema had been dealt with? I ask again: will there be other casualties and will the same principles be used to get rid of other opponents who do not shut up? Will they go after Matthews Phosa? Will they go after Kgalema Motlanthe if he ever grew a backbone and actually indicated that he was interested in presidency of the ANC? Will they go after our charming, but arch-opportunist, Tokyo Sexwale, for showing rather too much ambition?

And should this not all be read against the background of the pending suspension of a senior NPA prosecutor, reportedly because she refused to drop charges against crime intelligence boss Richard Mdluli who is said to enjoy protection from “right at the top”? Remember that last year a secret report prepared by Mduli was leaked to the newspaper and that this report claimed that various ANC leaders met in January 2010 in Estcourt, KwaZulu-Natal to plot the ouster of Jacob Zuma. (Why crime intelligence was involved in such a story is unclear as it is perfectly legal in a democracy for political contenders within a party to plot against each other – as long as they use only legal means.)

Key members of the group that is said to have met are KwaZulu-Natal provincial premier Zweli Mkhize and Human Settlements Minister Tokyo Sexwale.

Remember also that the Secrecy Bill has just as much if not more to do with attempts by the intelligence agencies (firmly under the control of Zuma and Mantashe) to protect their agents and to prevent any exposure of their – legal or illegal – activities which we now know (thanks to Mduli) also focus on the succession race inside the ANC.

It might be that Malema is a special case and that the extraordinary precedent set by this disciplinary case against Malema will not be used against other critics of the current ANC leadership or against anyone who dares to show any ambition to take over the job of President or Secretary General of the ANC. But do not count on it.

Even when people sound paranoid and express paranoid thoughts this does not mean that they have nothing to be paranoid about. So maybe we should take the recent mutterings of these two gentlemen seriously and explore the possibility that there has been a plot to discredit the President and the nominee for the highest judicial post in the land.

Consider the charges.

First, ANC secretary-general Gwede Mantashe told the Food and Allied Workers Union conference on Tuesday that criticism over justice Mogoeng Mogoeng’s “nomination” as Chief Justice “is a proxy war on the President… It doesn’t matter who would have been appointed, the decision would have been opposed by an alliance of forces seeking to defeat the ANC”.

Then SACP General Secretary Blade Nzimande said in a statement on Wednesday that there was a “liberal agenda” to unfairly criticise the liberation movement and the government.

The most concerted expression of this offensive has been around the president’s [Jacob Zuma] nomination of Justice Mogoeng Mogoeng to be the Chief Justice…. No sooner had the president made this nomination that a well co-ordinated and orchestrated campaign was launched to try and discredit Justice Mogoeng… to spite the authority of a president whose party was voted for by the overwhelming majority of our people.

In a country like South Africa, there are far less pressure on politicians to act in a principled, honest and consistent manner.

Unlike Constitutional Court judges, who are constrained – at least to some degree - by the text of the Constitution and by the legal precedent established by a long line of judgments, politicians do not have to be consistent, particularly honest or principled. As long as they achieve their short term goals – which usually entails, on the one hand, avoiding humiliation and avoiding being exposed as charlatans or crooks and, on the other hand, advancing their careers to climb the greasy poll - they have a relatively free hand to say and do anything that the voting public will let them get away with.

Thus, a politician like Helen Zille could effortlessly lambast ANC leaders for launching a scathing and unwarranted personal attack on the judges of the Constitutional Court, only to launch a scathing and unwarranted personal attack on a judge of the Cape High Court a few months later. Those who support her party almost all staunchly defended her – regardless of the principles involved – just as many of those who defended Jacob Zuma during his legal troubles did so – regardless of the facts.

But sometimes even politicians get caught out and then the ensuing spectacle presents such a bizarre and macabre contrast between what the politician used to say and do and what he or she now says or does, that the politician runs the risk of completely losing any credibility – even with the very gullible voting public who might once have defended the politician regardless of the facts.

Recall that after Schabir Shaik was convicted of bribing Jacob Zuma and then President Thabo Mbeki removed Zuma as Deputy President of the country in anticipation of him being charged with fraud and corruption, Zuma skilfully exploited his image as a victim. Zuma subtly encouraged his supporters to defend him and to attack his “enemies”, especially Mbeki. This Cosatu, the SACP and the ANC Youth League and their supporters did with little care for the consequences of their actions or any appeal to reason or principle.

Thus Mbeki was vilified and branded as a snake, and ANC T-shirts with his face on it was burnt by Zuma supporters who claimed that they would die for their leader – no matter whether he was corrupt and no matter what he might or might not have done with that baby oil in that room with the young daughter of an old and dear comrade friend. Cosatu, the SACP and the ANC Youth League all rallied behind Zuma because they had the short term goal of getting rid of Mbeki to unite them.

Very few of these politicians paused to ask whether Zuma might not have a case to answer in court – given the fact that Shaik had already been convicted of bribing him. They did not ask whether Zuma would make a good President of the ANC and the country. They did not really explore questions about President Zuma’s values and never stopped to ask whether – as supposedly principled and progressive organisations – they should support a leader who seemed to be rather surprisingly patriarchal and conservative in his views.

One would therefore be excused if one had a bit of a schadenfreugasm – to use a phrase popularised by Jon Stewart’s Daily Show – about the events today outside Luthuli House. While ANC Youth League President Julius Malema was facing disciplinary charges inside ANC headquarters, outside some of his supporters were pelting police and journalists with bricks, burning ANC T-shirts with the image of President Jacob Zuma and chanting slogans about how they would kill for Malema. How ironic that ANC Secretary General Gwede Mantashe, who blindly supported Zuma, today issued a statement condemning the behaviour of ANC Youth League supporters, conveniently forgetting the behaviour of the crowds outside the court when Zuma was charged with rape and when he made appearances during his many court battles with the Scorpions

Of course, many reasons could be advanced for the embarrassing but not unfamiliar display outside ANC headquarters today: the fact that Malema’s message of nationalisation resonates with some unemployed youth, that Malema is a role model for people looking at his flashy success, that the ANC leadership had encouraged this populism with their own behaviour, as well as any number of other explanations could be offered. But as I am not a professional political analyst I am far from sure that anything I could say on this topic would be of much interest or would show any special insight.

The point I would like to make is perhaps more mundane. If we had lived in a more normal society - a society not haunted by the lingering ghosts of our apartheid past - the bizarre events of today, which harks back to the events that led up to the ANC’s Polokwane conference and then to the dropping of criminal charges against President Zuma, might not have happened. If we had lived in a better functioning constitutional democracy, one in which the gap between rich and poor were not so vast and so obscene and in which conspicuous consumption by those with old and new money alike were not celebrated and held up as the ideal, it might have been more likely that reason, debate and sober reflection - instead of illogical rage – would have dominated the public discourse.

If we had lived in a more normal society, reason and logic might have had a better chance of being the dominant mode of doing politics. In such a democracy, leaders and ordinary citizens would have been required to be far more rigorous in justifying their decisions and would have more quickly been called to account if they failed to justify their words and actions in a credible manner. Politicians would at least have had to pretend to have principles, intellectual prowess and integrity (although, granted, in the UK of “New Labour”, Tony Blair – who was very good at pretending - turned out to be a disastrous leader). Most voters would have been shamed into opposing leaders who so clearly did not have the best interest of the poor at heart and were possibly corrupt.

But today’s events remind us that we do not live in an ordinary or normal country. We live in a country where some people (politicians and the old business elite among them) eat sushi from the bodies of semi-naked models; are protected by bodyguards and high walls from the young men and women who have no money, no jobs and little to lose; a country where some people travel across the world in first class and throw lavish parties, while the majority of South Africans languish in poverty and do not have the life chances to make meaningful decisions about their own lives.

Railing against Julius Malema and his supporters and calling them thugs and rioters will not change this basic fact – just like railing against Jacob Zuma during his battle with Thabo Mbeki had little effect. Unless we do something to address this bizarre and immoral state of affairs so many of us often seem to take for granted, everything that Mr Malema and his supporters represent will not disappear. That is one reason I support a wealth tax and why those who rail against the idea – just like they rail against Malema and his supporters – do not seem to me to have the best interests of South Africa and all who live in it at heart.

First Mantashe claimed that “everyone who has criticised the decision of the president [to 'nominate' Mogoeng Mogoeng as Chief Justice] has not come out with any concrete issues they have against him, except that he is young and he is inexperienced”. This is, of course untrue. Anyone who has read a newspaper (The Times; The Star; The New Age; The Cape Times; The Sowetan) this past week or, indeed, this Blog, would know that many other reasons have been provided for questioning the wisdom of the appointment of the president’s nominee – apart from his alleged lack of experience. It is always embarrassing when an influential and generally respected person makes a claim that no informed person will ever believe, so why Mantashe made this claim is impossible to fathom.

Second, Mantashe seems to believe that there is something wrong with the Constitutional Court because it does its jobs (as required by the Constitution) by declaring invalid Acts passed by Parliament which happen to contravene provisions of the Constitution. Speaking of the Glennister case, Mantashe stated that the judgment of the majority was problematic because it sought “to cast aspersion on the work of Parliament”.  Mantashe then proceeded to warn as follows:

You can’t have a judiciary that seeks to arrest the functioning of government. For every small disagreement in parliament, the positions threatens to take matters to the court. Once you have that, then you will have a perception that says the judiciary is actually consolidating opposition to government. That should not be the case. Matters must be taken to court, but the judiciary must not send complicated signals (of being an opposition).

These views are, of course, perfectly compatible with a system of parliamentary supremacy – the kind of system South Africa endured during the apartheid era. But since 1994 South Africa does not have a system of parliamentary sovereignty anymore. Instead, we have chosen a system in which the Constitution is supreme and any Act of Parliament and any conduct by the executive – amongst others – must be declared invalid by the Constitutional Court if it is asked to do so and if it finds that the provisions of the Act or the conduct is in conflict with the Constitution.

When the Constitutional Court declares invalid provisions of an Act of Parliament because these provisions happen to be unconstitutional, this is usually nothing to be embarassed about. In a constitutional democracy one can not always say with certainty whether a provision will pass constitutional muster or not and that is why the Constitutional Court has the final say to determine whether legal provisions pass constitutional muster or not. Besides, parliamentarians depend on legal advice to assist them in determining whether Bills before them are constitutionally compliant, and if they are provided with advice that is not always as wise and informed as it should be, this does not reflect badly on the members of parliament who are seldom trained lawyers.

As outgoing Chief Justice Sandile Ngcobo pointed out in a speech delivered last year, there is nothing strange about parliament declaring invalid acts of parliament. This is all part of a constitutional dialogue in which the court assists the legislature and the executive to ensure that its actions comply with the Constitution. When it assists the other branches of government, it is not acting as the opposition as Mantashe claimed, but as guardians of the Constitution. Surely Mantashe knows this. If he does not, then I can offer to lend him a few books on constitutional law to get him up to speed with the system of government we have chosen in South Africa.

But probably the stupedist thing Mantashe said related to the Constitutional Court’s judgment in which it declared invalid section 8(a) of the Judges’ Remuneration and Conditions of Employment Act. Complaining about this judgment like a spoilt child would complain about not being given another ice cream, he made the following pronouncement:

Even the judgment on the extension of the term of Chief Justice Sandile Ngcobo’s term looks very suspicious. That judgment looks suspicious from where I am seated. I’m not a lawyer, but the judgment is very very suspicious. You have a section in the law that has been there over 10 years, and at a point of extending the term of a judge, then it (suddenly) becomes unconstitutional.

Surely, one does not have to be a constitutional lawyer to know that the Constitutional Court does not have the power to declare invalid Acts of parliament unless the constitutionality of the Act is challenged by some or other party? Where parliament passes a Bill and it becomes law it remains the law until such time as someone challenges its constitutionality - in which case the Court must determine whether the Act is constitutionally valid or not. The statement quoted above is therefore beyond embarrassing.

I suspect Mantashe knows all of the above (how could he not) but that he deliberately made these statements because of frustration in the Zuma government about the many avoidable mistakes it has been making over the past year, many of which had to be corrected by the Constitutional Court. Instead of acting like a mature person and thanking the Constitutional Court for its assistance to correct sometimes quite obvious and glaring mistakes, Mantashe now petulantly blames the institution who had the task of pointing out the mistakes in the first place. Apart from being immature, this approach is also misleading the public – whether deliberately or not – and is not befitting of a senior office bearer of the governing party in a constitutional democracy.

These questions are rather more difficult to answer than one might think. The recent case of the shenanigans of some of the leaders of the ANC Youth League is a case in point.

When ANC Youth League secretary-general Vuyiswa Tulelo told a daily newspaper last month that a High Court Judge who had ruled against the Youth League had arrived at a “drunken decision”, Advocates for Transformation rightly took Tulelo to task for insulting Grahamstown High Court Judge Nomathamsanqa Beshe. Judge Beshe had ruled against Julius Malema’s leadership of the league and reversed its decision to disband the league’s Eastern Cape provincial leadership. Should Tulelo not have been summonsed to court and thrown in jail for contempt of court?

This matter was, of course, made worse when ANC Youth League KwaZulu-Natal provincial secretary, Bheki Mtolo then said the following in response to the ruling:

We also want to warn the judiciary to desist from meddling with our internal political issues…. We have always respected the independency of the judiciary. However, the conduct of some of these judges who have become political role players has made us conclude that we will engage with them in a political manner.

Last week Chief Justice Sandile Ngcobo rightly called these assaults on the judiciary ”very troubling”  because “this kind of criticism may well undermine public confidence in our courts”. When politicians attack the integrity of individual judges (something Helen Zille and Gwede Mantashe have also made themselves guilty of in the past), instead of focusing on the reasons given for the judgment and engaging with the correctness of such a judgment - based on legal principles and analysis - they go beyond acceptable criticism of the judiciary and they undermine the legitimacy of our courts.

So, are members of the judiciary finally fighting back against this kind of flagrant disrespect shown to our judicial system by “some among us” (to quote that other guy who used to be President - what is his name again?)? News that the Labour Court in Johannesburg had found Gauteng leaders of the SA Democratic Teachers Union (SADTU) guilty of contempt of court, and had ordered that the provincial management and leaders of the central branch (Soweto) be arrested and detained for 15 days for ignoring an interdict that was handed down on Sunday, suggests so.

The SADTU leaders were prohibited by the court order from holding meetings in school time and disrupting the matric preliminary exams in any way but they had allegedly ignored this order.

These examples deal, of course, with two different kinds of contempt of court. The Youth League statements might have been contempt of court because it “scandalised the court”, while the  SADTU refusal to obey a court order might have led to a different kind of contempt of court not related to the “scandalising” of the courts.

Contempt of court is a difficult matter to deal with in a constitutional democracy. It has been argued that the exceptional summary procedure for contempt of court could be interpreted as subverting the fundamental presumption of innocence guaranteed in section 35(3)(h) of the Constitution. The fact that the very judge whose judgment was ignored or who was scandalised by the personal attacks of politicians could make a decision on whether an individual was guilty of contempt of court, could also raise constitutionally difficult issues, given the fact that everyone has a right to be tried by an independent and impartial court.

In 2001 in the case of S v Mamabolo the Constitutional Court dealt with one aspect of contempt of court relating to the “scandalising of the court” (Justice Kriegler writing the judgment) and confirmed that this was indeed a constitutionally valid criminal offense that could be used to protect the judicial process against scurrilous attacks.

It confirmed that “scandalising the court” is a form of contempt of court recognised by our law. This, said Kriegler, was part of “a variety of offences that have little in common with one another save that they all relate, in one way or another, to the administration of justice”. Noting that the definition of contempt of court is rather broad, Kriegler wondered why  there is such an offence as scandalising the court at all “in this day and age of constitutional democracy”.

Why should judges be sacrosanct? Is this not a relic of a bygone era when judges were a power unto themselves? Are judges not hanging on to this legal weapon because it gives them a status and untouchability that is not given to anyone else? Is it not rather a constitutional imperative that public office-bearers, such as judges, who wield great power, as judges undoubtedly do, should be accountable to the public who appoint them and pay them? Indeed, if one takes into account that the judiciary, unlike the other two pillars of the state, are not elected and are not subject to dismissal if the voters are unhappy with them, should not judges pre-eminently be subjected to continuous and searching public scrutiny and criticism?

The answer is both simple and subtle. It is, simply, because the constitutional position of the judiciary is different, really fundamentally different. In our constitutional order the judiciary is an independent pillar of state, constitutionally mandated to exercise the judicial authority of the state fearlessly and impartially. Under the doctrine of separation of powers it stands on an equal footing with the executive and the legislative pillars of state; but in terms of political, financial or military power it cannot hope to compete. It is in these terms by far the weakest of the three pillars; yet its manifest independence and authority are essential. Having no constituency, no purse and no sword, the judiciary must rely on moral authority. Without such authority it cannot perform its vital function as the interpreter of the Constitution, the arbiter in disputes between organs of state and, ultimately, as the watchdog over the Constitution and its Bill of Rights — even against the state.

There is of course a tension between the need to protect the judicial process (for the benefit of us all) and the need to safeguard freedom of expression for those who wish to criticise a decision made by a judge.  Because statements concerning judges and the performance of their duties can have a much wider impact than merely hurting the feelings of an individual judge, this crime focuses on acts or statements that reflect on the integrity of courts, as opposed to mere reflections on the competence of judges or the correctness of their decisions.

As the Constitutional Court pointed out, the test for scandalising the court, namely that one has to ask what the likely consequence of the utterance was, will mean that it will be rather difficult to find someone guilty of this offence. Merely criticising a decision – even in harsh terms – would not constitute contempt of court in a constitutional democracy. Launching a personal attack on the integrity of a judge by, say, suggesting that he or she is a drunkard or that he or she is a political lackey of a particular political party would get closer to meeting the requirements for this kind of contempt of court.

Similarly, when contempt of court deals with the intentional and unlawful disobeying of a court order, one will only be convicted if it can be shown beyond reasonable doubt that one indeed had the intention to disobey a court order. The Supreme Court of Appeal confirmed in the case of Fakie v CCII Systems (pty) Ltd that one would only be found guilty of this kind of contempt if one had disobeyed a court order ”deliberately and in bad faith”. If one honestly believed that one was justified in ignoring the court order one could not be found guilty of contempt of court, said the SCA.

It seems to me where any individual or organisation (whether it is a ordinary citizen, a public official, a Minister, a political party or a union) deliberately disobeys a court order – even when it is clear that there was no valid excuse for doing so - the attack on the legitimacy of the judicial system is so severe that there should be little problem with throwing the person in jail. The order of the Labour Court therefore seems appropriate (unless other factors not mentioned in the media might have cast doubt on whether the SADTU leaders had disobeyed the court order in bad faith). If court orders are not obeyed, then the judicial system breaks down and with it the rule of law. Chaos and anarchy is inevitably the result.

But when immature, self-serving, or rather dim-witted politicians attack the integrity of judges (whether they are members of the Youth League, the ANC proper or the DA) one should be rather more careful about using contempt of court proceedings to reign them in. If this procedure is used too quickly, there is a danger that this will stifle debate and dialogue about the work done by courts. Judges are not directly accountable to anyone – which is a good thing – but they are indirectly accountable to the public at large in that their decisions and the reasons given for decisions can be subjected to analysis and criticism.

But what to do in a case like the one mentioned above, where a Youth League leader calls a decision a “drunken judgment”? Should one press for the court to hold her in contempt of court on the basis that she scandalised the court?

Personally, I believe such statements are outragous and that the ANC should take action against the guilty officials, and that their membership of the ANC should be suspended for a number of years. Failure to do so will cast doubt on the ANC’s commitment to an independent and impartial judiciary.

But at the same time, I suspect that it is better to err on the side of free expression and therefore not to throw such oficials in jail on the basis that they are guilty of contempt of court. Besides, if our courts decide to go down that road we might sit with the strange situation where Gwede Mantashe, Helen Zille, and several Youth league leaders are all locked up for contempt of court. Imagine they all find themselves in the same prison for a 15 day period! It would make for an interesting discussion in jail, but would probably not be good for the legitimacy of the judicial system in the long run.

The Sun remained a supporter of the Labour Party in election after election but switched sides before the general election earlier this year. Labour, of course, lost this election to a coalition of the Conservatives and the Liberal Democrats. (The fact that Sky News was obviously rooting for the Conservatives might also have helped a bit.)

Clearly the African National Congress (ANC) does not share Tony Blair’s Machiavellian view of how to influence the media. In recent days several ANC leaders and spokespeople have revived the idea of a Media Appeals Tribunal. It is unclear what this Tribunal would do or to what extent it would impose the ideological world view of the ANC on the media.

For Gwede Mantashe, it seems, a Media Appeals Tribunal will help to “correct” the anti-ANC bias in the media. He argues  that the media is driven by a dark conspiracy to discredit the National Democratic Revolution (conveniently forgetting that the vast majority of South Africans receive their news from the SABC, a state broadcaster masquerading as a public broadcaster).

Blade Nzimande would like to see the Tribunal used to stop the alleged corruption in the media. He points out, correctly, that the Ashley Smith affair asks some serious questions not only about the integrity of Ebrahim Rasool, but also of Smith and other members of the media and calls for a re-evaluation of the role the media plays in South Africa. 

(Is it not ironic that a cabinet Minister has taken the allegations made by former Cape Argus reporter Ashley Smith at face value and has used it to argue for the institution of a Media Appeals Tribunal, while the President has appointed the very person who has allegedly bribed Smith as our ambassador to Washington? Will Nzimande demand that the appointment be rescinded or will he show himself to be a rank hypocrite?)

ANC spokesperson, Jackson Mthembu, so it seems, want to use the Media Appeals Tribunal to censor the media and to stop them publishing things that might be upsetting or distasteful. Lambasting the Mail & Guardian for publishing a picture of the highly controversial Mandela autopsy painting, Mthembu stated:

This unbridled freedom of the media, as evidenced by projection of this so called art in the Mail and Guardian, confirms that the self-regulated print media environment is a recipe for disaster and negates the core values we hold dear as the society as contained in our constitution.

All these statements have at least two very scary things in common. First, it shares an utter lack of understanding of freedom of expression and the media in a well-functioning constitutional democracy. Second it endorses a view that ideas, facts, practices or opinions that the ruling party opposes or thinks is dangerous or harmful (to itself, to the state?) should not be published in the media and that a Tribunal should regulate the media to stop them printing such things.

In an open and democratic society, the media is an important and powerful player. It would be naive to think that members of the media do not have political views and that such views are not reflected in the choices of stories they carry and the way these stories are told. What is excluded is often just as important as what is included.

That is why one does not have to be a rocket scientist to know that the SABC is close to a mouthpiece of the ANC, while ETV and the print media are more critical of the ANC. No wonder the ANC wins every election with more than 60% of the vote, as the SABC is the main source of information and news for almost 80% of South Africans.

A free media is important because it protects and enhances our human dignity. It does this by providing us with different views so that we can make up our own minds about who we are, what we think and how we want to live. A free media helps us to have some agency and thus to become people whose inherent human dignity is respected.

The diversity of views seem all important, which means that as a rule, the majority or the majority political party should not be able to tell the media what it can and cannot publish as this would infringe on the human dignity of every South African. If we know nothing except that which we are allowed to know by our leaders, we do not live lives of dignity. Instead we live lives as people who are only half human, cut off from a sense of self, part of a collective, yes, but not able to change our minds or decide for ourselves what is good or bad in our world and how we want to deal with this reality.

Of course, in a democracy, political parties try to woo the media to get them to write nice things about them. If they make mistakes, they try and manage the media to limit the negative effects of their mistakes. Helen Zille, as a former journalist, is quite good at this kind of media management when she keeps her paranoid anti-ANC rhetoric in check.  ANC leaders are seldom good at it and if they are (like Tokyo Sexwale) they are viewed with suspicion.

People who work in the real media (as opposed to those who work for the bureaucratic pro-state SABC) like to think of themselves as cool, intelligent and hip. When the ANC talks about the National Democratic Revolution, deploy fake revolutionary phrases that went out of fashion around the time that the USSR invaded Hungary, and talk about dark conspiracies by the enemies of the new order (by which they usually mean critics of the ANC and the government of the day), they alienate ordinary, decent, journalists who might otherwise have been ideologically rather close to the ANC.

What the ANC and the government it leads actually needs is not a Media Appeals Tribunal, but a media strategy to woo the non-state media to its side by talking the language of ordinary people and citizens. Instead of talking that fuax revolutionary drivel and blaming the Dark Lord Sauron, anti-transformation forces, the CIA or the Devil himself for their bad record on service delivery and for the bad publicity on corruption and the like, the ANC needs to face up to the facts and take quick and decisive action to correct mistakes to try and convince the real media that it really, really cares and is doing its best to stamp out corruption and to improve service delivery.

The ANC has been spoilt by its praise singers at the SABC, so it does not understand or respect real media freedom. Thus it cannot see the difference between disagreeing with something the media did (publishing the Mandela painting, for example) and demanding that the media be stopped from doing it. In a real democracy there are laws of defamation that protects the dignity of everyone and the media must operate within those laws but otherwise freedom of the media means exactly that: freedom to publish even things that the majority party does not like or finds despicable.

When the media does something that one really finds upsetting, one is of course entitled to criticise them. One can call the Mail and Guardian callous for publishing the painting of Mandela’s autopsy, or one can argue that the painting is just a really bad piece of art and that the Mail & Guardian has been sensationalistic and has shown a shocking lack of taste in publishing a “work of art” that is no more than a cheap and pathetic attempt to garner publicity for the artist.

That is all fair comment. But to suggest that the Mail & Guardian should not be allowed to publish the painting is to endorse a kind of censorship that cannot be squared with a constitutional democracy. I for one want to know what the fuss is about and want to make up my own mind on whether the painting is a cheap and pathetic publicity stunt or a meaningful and thought-provoking meditation on wisdom and learning.

The problem is that the ANC has not yet embraced the notion that its own views about what is right and wrong, what is acceptable or not, about what is an affront to the dignity of one of its leaders or not, is just that: its own view and one of many. It has not yet accepted that it does not speak on behalf of the nation (what a paternalistic notion!) and can thus not tell everyone what it is allowed to publish or to think. Its views – no matter how widely shared, cogent or laudable - is just one set of views.

There are many other views and if we want to live in a real democracy (and not the kind of fake democracy found in Hungary after 1956) we have to allow the many different views as long as the expression of these views stays within the bounds of the law of defamation.

This does not mean we cannot get upset or that we have no right to express our contempt and anger at the media. It just means that we cannot impose our own view – which is one of many different views that must be allowed to flourish in a society based on human dignity – on all.

Time will say nothing but I told you so,
Time only knows the price we have to pay;
If I could tell you I would let you know.

If we should weep when clowns put on their show,
If we should stumble when musicians play,
Time will say nothing but I told you so.

I don’t often say I told you so, although I would lie if I denied that I am often tempted to do so. But in the wake of reports that the ANC National Working Committee (NWC) on Monday discussed the possibility of charging Cosatu leader, Zwelenzima Vavi, (or may have already decided to charge him), for insulting ANC leaders in public, I have to say: “Well I told you so”.

The Times reports that the ANC wants to charge Vavi as he is a card carrying member of the ANC. They argue that ANC Youth League president Julius Malema was also charged as an ANC member. They are very, very, cross with Vavi because last Thursday, he accused President Jacob Zuma of not taking action against corrupt ministers, specifically mentioning Minister of Cooperative Governance Sicelo Shiceka and Communications Minister Siphiwe Nyanda. Vavi said reports that Shiceka had lied in his CV and the conduct of Nyanda, who spent R500 000 on hotels in Cape Town, should be probed.

The tenderpreneurs in the ANC obviously did not like this talk of probing Ministers for corruption. What will be next? Charging President Zuma for taking money(“taking a bribe”, our courts called it) from a crook and then doing favours for that crook? Exposing the various business dealings of ANC leaders making a fast buck while service delivery flounders? I mean really, who does Vavi think he is? How can one effectively loot rule a country when one’s allies want to have corruption probed and exposed? Have you ever heard of such an absurd idea?

There are no fortunes to be told, although,
Because I love you more than I can say,
If I could tell you I would let you know.

The winds must come from somewhere when they blow,
There must be reasons why the leaves decay;
Time will say nothing but I told you so.

Vavi is, of course, an ANC member and according to the ANC Constitution he is subject to the discipline of the ANC like any other member. It would therefore be perfectly legal to charge Vavi. I am sure if the right disciplinary committee is selected Vavi could also be found guilty of contravening section 25.5 of the ANC Constitution which prohibits any member from, inter alia: 

Behaviour which brings the organisation into disrepute or which manifests a flagrant violation of the moral integrity expected of members and public representatives or conduct unbecoming that of a member or public representative;

Behaving in such a way as to provoke serious divisions or a break-down of unity in the organisation;

Undermining the respect for or impeding the functioning of the structures of the organisation;

Prejudicing the integrity or repute of the organisation, its personnel or its operational capacity by: Impeding the activities of the organisation; Creating division within its ranks or membership; Doing any other act, which undermines its effectiveness as an organisation; or Acting on behalf of or in collaboration with: Counter-revolutionary forces.

That is exactly why I warned after the conviction of Julius Malema that it was a bad idea to find him guilty of criticising the President of the ANC. At the time I wrote:

Surely, if this approach were to be strictly applied, it would stifle democratic debate within the ANC and would severely limit the freedom of expression enjoyed by ANC members. If an ANC member criticized one of his comrades because that comrade had been found guilty of corruption, say, disciplinary charges could be instituted against him or her for sowing division within the ANC. This would leave good members in the ANC who spoke out against the wrongdoing of comrades vulnerable and would make it rather difficult to raise questions about the conduct of fellow ANC members – even if this criticism is based on proven facts.

And that is exactly what Vavi is now facing. Those who want to stop Vavi from speaking out about corruption in the ANC (so much the better to loot govern the country) are even using the Malema saga as an excuse to do so. This is the problem with curtailing freedom of expression and endorsing censorship: today it is being used against your enemies, but tomorrow it is being used against yourself – even when you speak the truth and are one of the good guys.

The fact that the NWC even discussed the possibility of charging Vavi clearly means that the tenderpreneurs in the ANC are more stupid and vengeful than they are greedy (and that takes some doing). Charging Vavi would be a calamity for President Zuma and the ANC. Unlike Malema, who has no real power base, is being manipulated by a few rich benefactors to do their bidding, and could easily be dropped when he passes his sell-by date, Vavi is the leader of Cosatu. Without the organisational skills of Cosatu and the active support of its members, the ANC will find it difficult to get more than 50% of the vote at the next election.

One assumes President Zuma and Mr Gwede Mantashe will outflank the tenderpreneurs on the NWC and will make sure that charges against Vavi never see the light of day. If they do not, the ANC would probably be done for as the governing party.  But what President Zuma will not do is to order an investigation into the credible allegations of corruption against Siphiwe Nyanda. If one lives in a glass house one is surely not going to throw the first stone.

Meanwhile, all I can say to Zwelenzima Vavi is: “I told you so”. When Vavi supported President Zuma as the alternative to Thabo Mbeki and said Zuma was an unstoppable tsunami I warned that President Zuma was an African traditionalist and deeply conservative man who did not share the values held so dearly by Cosatu. Now Vavi is realising that this is indeed the case and that he had helped to elect a man that is ethically weak and holds reactionary views.

Perhaps the roses really want to grow,
The vision seriously intends to stay;
If I could tell you I would let you know.

Suppose all the lions get up and go,
And all the brooks and soldiers run away;
Will Time say nothing but I told you so?
If I could tell you I would let you know. – - WH Auden “If I could Tell you”

Who knows where the truth lies.

More interesting though is the reasons given for the dropping of some of the more serious charges against Malema. It has been stated that these charges were prepared by Gwede Mantashe, who was not authorized to do so as he was not the person actually charging Malema. The charges were therefore procedurally deficient.

Despite this, Malema was eventually found guilty of contravening Rule 25.5.(i) of the Constitution of the African National Congress “by behaving in such a way as to provoke serious divisions or a break-down of unity in the organization”, in that:

At the ANC Youth League Limpopo Provincial Congress, on Sunday, April 11, 2010, when addressing the media, you issued the utterance that, “Even (former) President Thabo Mbeki, when he differed with the Youth League, and the Youth League had taken firm radical positions against him, he never did that” thereby implying that the ANC Youth League, of which you are the President, has taken a position against the President of the ANC.

Whether this outcome can be squared with rule 25.2 of the ANC Constitution is debatable. This rule states that disciplinary charges shall not “be used as a means of stifling debate or denying members their basic democratic rights”. Although I am not a great fan of Juju’s style of politics, it is difficult not to conclude that his offending statement was basically true and that he had a democratic right to make it. The finding of the National Disciplinary Committee (NDC) suggests that an ANC member who criticizes a fellow ANC member – even if this criticism is based on fact – may face disciplinary charges, something that seems rather undemocratic to me.

Surely, if this approach were to be strictly applied, it would stifle democratic debate within the ANC and would severely limit the freedom of expression enjoyed by ANC members. If an ANC member criticized one of his comrades because that comrade had been found guilty of corruption, say, disciplinary charges could be instituted against him or her for sowing division within the ANC. This would leave good members in the ANC who spoke out against the wrongdoing of comrades vulnerable and would make it rather difficult to raise questions about the conduct of fellow ANC members – even if this criticism is based on proven facts.

This seems rather counter-productive and even dangerous. Surely we need more ANC members exposing and criticizing their comrades for doing the wrong thing – not less of it? A culture of corruption and lawlessness flourishes where good people fear to speak out and to criticize their comrades.

I suspect the ANC Youth League will pursue this line of reasoning in its attempt to have the findings of the NDC overturned by the National Executive Committee (NEC) of the ANC.

According to the regulations attached to the ANC Constitution, disciplinary charges can be brought by “any organ or official of the ANC at Branch, Regional, Provincial or National level”. The National Disciplinary Committee is also empowered to hear and decide cases “referred to it by the ANC National Officials, NWC, or the NEC or of very serious violations or offences on its own initiative”. A charge must be prepared on behalf of the organ or officials of the ANC instituting the disciplinary proceedings.

This suggests that Mantashe should not have prepared the charges, but that these should rather have been prepared by the person actually prosecuting the case on his behalf. This is, as far as I can tell, why the three other charges against Malema were thrown out. However, the NDC itself  is empowered to hear cases “on its own initiative” where the charges are serious. This the NDC did, choosing the one charge mentioned above.

This suggests the NDC did not feel that the other three charges regarding Malema’s visit to Zimbabwe, comments about Eugene Terreblanche, and the attack on a British journalist were “serious”. The NDC apparently believed it was far more serious for Malema to have criticized the President of the ANC than to have interfered with South Africa’s foreign policy, to have ignored ANC instructions not to comment on the death of Terreblanche in order to calm the nerves of the whiteys, and to have displayed a rather shocking lack of respect for media freedom.

To my mind the whole disciplinary process seems like a side show as it skirts the real problem with Malema. Newspaper reports suggest that Malema has R53 million in the bank, that he is a major shareholder in companies that had secured tenders from various municipalities in Limpopo despite the fact that the companies were not eligible for tenders because they had no tax compliant certificates, and that the companies did shoddy work. If any of this is true, Malema is the quintessential tenderpreneur, milking the state dry for his own benefit – to the detriment of the people whom the ANC was elected to serve.

If these allegations are true – and it is difficult not to suspect that there is a grain of truth to them, given the confusing and contradictory explanations and justifications offered by Malema and his failure to sue the newspapers for publishing these defamatory claims – it would suggest that Malema is a thoroughly corrupt man who is using and abusing his position in the ANC for personal gain.

Surely, if the ANC wants to retain the trust of the majority of South African voters, it needs to deal with the growing perception that leaders like Malema are using their power and influence to get rich while service delivery is fatally compromised. Is this perception – now widely shared by people of different political persuasions and races – not far more detrimental to the well-being of the ANC and the people of South Africa than the mild criticism Malema leveled against our President?

Of course the chattering classes are far less dependent for their survival on the efficient and honest functioning of the state than the poor and marginalized in our society. The chattering classes hire private security companies to protect them, hunker down in gated communities where services are delivered by the body corporate, and eye the opportunities to enrich themselves through legal and illegal means, while those who are absolutely dependent on the state are left to their own devices. That is why members of the chattering classes get more worked up when Malema sings “Kill the Boer” or when he jets off to Zimbabwe, than about the allegations that poor black people in Limpopo had been fleeced by Malema through tender scams.

What we all desperately need – whether we are ANC supporters or not – is for investigative journalists and honest ANC members to expose any corrupt practices linked to Malema or any other ANC leaders. If alleged corruption by ANC politicians or their enablers in the private sector is not mercilessly exposed and stopped, the legitimacy of the state itself will be endangered. And once the state loses any legitimacy, it would lose the ability to keep the fragile peace in South Africa, a peace that is required for the chattering classes to continue enjoying the benefits of their wealth and privilege.

Sadly, the outcome of the disciplinary case will do nothing to address these real problems.

PS: What we also need is a police service and a prosecuting authority that will go after those suspected of corruption, whether they are in government or the private sector. That is why the appointment of Menzi Simelane seems like such a disaster to me.

My first thought was a rather naive one: Surely that cannot be right? How can the SARB be privately owned? And if it is privately owned, who owns it and how can I buy some of those shares (that is, assuming I had any money to buy the shares with)? It would be rather nice to say I own part of the South African Reserve Bank and, I imagine, it would be a rather safe investment.

Well, Mantashe was right – sort of. When the SARB was established it was common practice for central banks to have private shareholders and as the Bank explains on its website:

The ownership structure of the SARB, however, has not been amended since its inception. It is a juristic person in terms of its own Act. The SARB has some 600 shareholders and its shares are pre-dominantly traded on an over-the-counter trading and transfer facility. The SARB is one of only nine central banks with shareholders other than the governments of their respective countries.

So, does this mean that getting rid of those private shareholders is a good idea or that it is constitutionally feasible to nationalise the SARB?

Section 224 of the Constitution states that the primary object of the SARB “is to protect the value of the currency in the interest of balanced and sustainable economic growth in the Republic”. In pursuit of this objective, it “must perform its functions independently and without fear, favour or prejudice, but there must be regular consultation between the Bank and the Cabinet member responsible for national financial matters”.

The constitutional position of the SARB is thus quite similar to that of the National Prosecuting Authority (NPA): its independence is constitutionally guaranteed and the government of the day is prohibited from interfering with the day to day running of the Bank or any of its decisions. (Menzi Simelane, the man purportedly appointed by President Zuma to head the NPA, might of course disagree with this blindingly obvious constitutional fact – either because he is very ignorant or very dangerous – but that would not change what the law says.) At the same time the Bank is required to interact with the government to ensure that the broad policy objectives of the Bank and the government are aligned.

Nationalising the SARB will not change this at all – unless the Constitution is amended to abolish the independence of the SARB to allow the Bank to follow the instructions of the government of the day. If Mantashe meant to say that it was perhaps necessary to abolish the independence of the Bank, he was obviously smoking the strong stuff from Swaziland or the former Transkei because we all know what will happen if the Bank started acting in the interest of a strong clique within the governing party.

If that happens the Bank will start to print money to finance the lavish lifestyles of the right kind of party faithful and to buy the loyalty of cadres and before we know it we will all become Rand millionaires and acquire terrific numeracy skills (without any assistance from the Minister of Education), as we will be running around with R10 00000000000 notes in our pockets to pay for a loaf of bread.

It does seem rather strange that the SARB has private shareholders though, but in practice this makes no difference to how the Bank operates. While seven of the fourteen members of the Board are appointed by the President and seven more are appointed by shareholders, the Governor of the Bank has a deciding vote on the Board, giving control of the bank to those appointed by the President. Shareholders cannot remove the governor or the other members of the Board and have very little power over the Bank.

The SARB Act can be amended without any constitutional problem to abolish private shareholding in the Reserve Bank – as long as those shareholders are adequately compensated. But, once again, this will make no difference to how the Bank operates as its independence is constitutionally guaranteed.

The “debate” about the nationalization of the Reserve Bank is therefore a red herring to hide disagreement in the ANC about more fundamental economic questions within the ANC alliance.

The larger economic question (which I am not in a position to address) is whether the Bank’s broad policies on inflation targeting, agreed to by the Bank and the Minister of Finance, is good or bad for the working poor and the unemployed. Those who are calling for the nationalisation of the Bank should rather engage the Minister of Finance (who the last time I checked was a communist) about the broad government policy framework on inflation targeting and interest rates if they wish to change the policies of the Bank.

Nevertheless, if anyone has some Reserve Bank shares they want to give away in the name of transformation I will be happy to accept on the basis of representing the gay and lesbian lobby! Given the overwhelming influence of money on our politics (Tokyo Sexwale gave lots of shares to influential opinion makers – remember Xolela Mangcu? – to buy some good publicity for himself and for Jacob Zuma) one of those Reserve Bank shareholders might believe if they give me some shares I will sing the praises of one politician or another.

I am happy for them to think that giving me shares will help their cause and will gladly take the shares – and then write exactly what I like in any case.

Just a (tongue in cheek) thought.

One also does not want to find fault with everything our President does and one does not wish to be seen to try and tell President Zuma or his advisors what to do – that would be arrogant and patronising.  

However, from a purely constitutional law perspective, the tension in the cabinet and between the ANC government and Cosatu about the role of former finance minister, Trevor Manuel, raises an important question: where is President Jacob Zuma and why is he not leading as he is empowered and required to do by the Constitution?

Judging not only from media reports but also from statements made by various alliance leaders, a clash is building up between the ANC and Cosatu about the powers held by Trevor Manuel, Minister in the Presidency, and Ebrahim Patel, Minister of Economic Development. Cosatu maintains that Manuel’s Green Paper on national planning makes him a “super-minister”, to whom Patel will be subordinate. At its Midrand conference Cosatu consequently launched a vicious attack on the former confidants of ex-President Thabo Mbeki.

Cosatu had, of course, called for a complete overhaul of the content of the National Planning Commission for a “vigorous” engagement on the alliance’s green paper. To ensure that there was no confusion, Cosatu general secretary Zwelinzima Vavi referred to the green paper as representing “a massive turf battle in cabinet”. He indicated that certain ministers – most notably Economic Development Minister Ebrahim Patel – were being sidelined while Manuel had been positioned at the centre of processes.

Even if one has regard for the intricacies of alliance politics, there seems to be no need for all this tension. The President has both the power and the duty to address the tension and to ensure that his cabinet operates optimally. (If Cosatu does not like this they can complain, but Cosatu has no constitutional powers to run the country.) It is time to lead. We should expect nothing less from our President whom a majority of voters have entrusted with the power to lead us. Now he should do exactly that and lead – as required by the voters and the Constitution.

President Zuma clearly wishes to lead in a more conciliatory and consensus-building style, which is a welcome departure from the previous nine years of Mbeki rule. But this does not mean our President does not have a duty to make difficult decisions once all the consulting has been done. When one is President one cannot please all the people all the time and if one tries to do that one will be perceived to be weak and ineffectual and it won’t be long before the vultures swoop and one will end up like former President Thabo Mbeki – with lots of time on your hands to write your memoirs. 

Worse, the cabinet will not be able to do its work properly because of all the suspicion and infighting and ordinary people who have pinned their hopes on the government to provide a “better life for all” will suffer.

Of course, the President should not make the mistake to micromanage his cabinet. Helen Zille seems to have a tendency to do exactly that and in the Afrikaans press one hears the first rumblings from her provincial MEC’s about her dictatorial style.  She seems not to have learnt anything from the Thabo Mbeki fiasco, but perhaps she is bargaining on the fact that the Democratic Alliance does not have the same kind of appetite for democracy and constestation as the ANC. (Or maybe, like Margareth Thatcher, she will also leave her job in tears one day, still unable to understand how her minions who had always feared – if not respected – her could have stabbed her in the back.)

In any case, section 92 of the Constitution states that the “Deputy President and Ministers are responsible for the powers and functions of the executive assigned to them by the President”. This means that ordinary executive powers not dealt with by legislation can and must be delegated by the President to his or her various Ministers.

Constitutionally the President has a very broad discretion to decide how his cabinet will operate, how many members must serve in the cabinet and exactly what each cabinet minister will be responsible for. The current tension about the role of the Planning Minister  vis-à-vis the Economic Development Minister can – from a legal perspective – thus only be solved by the President.

This does not mean that he should not consult and discuss the difficult issues raised by Coastu and others, but the buck stops with him and at some point he will have to do what he is paid to do and what he was elected to do – lead and make decisions.

Even where legislation originally bestwowed powers on one minister, the President has the power to change this. Section 97 of the Constitution states that the President by proclamation may transfer to a member of the cabinet the adminsitration of any legislation entrusted to another cabinet member. He may also transfer to a member of the cabinet any other power or function entrusted by legislation to another member of the cabinet.

So, its is fine to travel the globe, to cut ribbons opening hospitals and schools and half built roads, to smile and laugh and tell jokes, to inspire us ordinary South Africans with nice warm-hearted stories and gestures, to threaten criminals with execution (well, maybe not that last one) and to meet with opposition parties, but in the end the buck stops with the President.

It is time for him to start making the difficult decisions as there are more important things in South Africa for a politician than being loved by all. There is a country to run, poverty to address, houses to build, children to feed and an economy to transform. Only the President has the constitutional power to guide this process via his cabinet. Gwede Mantashe might think this is up to him, but the Constitution is silent on the role of the Secretary General of the ANC in the running of the country. President Zuma  is the elected leader, not Mantashe, and it is therefore Zuma who has the constitutional duty to lead.