The ground has shifted in South Africa in the past two weeks, with a Constitutional Court ruling earlier this month that will transform political governance. The first sign that the ruling is taking effect was the sudden move by President Cyril Ramaphosa to lift the Covid-19 lockdown on Wednesday. BizNews founder Alec Hogg unpacks the details of the ruling and its implications for the country’s future with Teresa Conradie of the legal firm which drove the case – Maphalla, Mokate, Conradie – and entrepreneur and former mayor of Johannesburg, Herman Mashaba. This article is part one of a four part series on how the monopoly that delivered ANC cadre deployment in Parliament is ending. If you want to catch up on the full session, the webinar recording is available here, too. – Editor
Alec Hogg: We’re going to be talking today about the change or the big judgment of a week ago, which is changing the Electoral Act. Before we get into the judgment; you’re a leading business man in South Africa. You really had the world at your feet, if you like, going into whatever company you would have wanted to, any board you could have gone on to.
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But you decided instead to go into politics, and at the time, it was a surprise to many of us who know you. Just take us through that mindset – why you went into politics and became, surprisingly to most people, the mayor of Johannesburg in the Democratic Alliance. And then you left there and you’re now doing something completely different. So, it’s a big move from being an entrepreneur and building a very successful business to becoming part of the political establishment.
Herman Mashaba: I never thought in my wildest dreams that I would one day become a public servant. But I was really driven by events of our country over the last 26 years, because I grew up never thinking that one day I will see democracy in my lifetime – that I’ll get an opportunity to be a citizen of South Africa – have the voting rights. And it happened on the twenty seventh of April, 1994; I voted for Nelson Mandela. South Africa, as you remember, became the envy of the world.
And we all really worked hard to ensure that we succeeded. The world was fully behind us. Unfortunately, somewhere along the line, things started just really changing. And just to really give your listeners historical context of what compelled me to throw the hat in the ring to be a public servant; the period between 1990 and 1994, before the elections, I honestly and truly never believed South Africa would allow the peaceful transition because the way the National Party had divided us along racial lines – using coercion, using force – I thought it’s impossible that you’re going to get black and white South Africans to work together. But Mandela was outstanding.
By that time when the negotiations were happening at CODESA, I was already doing business in South Africa. I had a state of the art six thousand square meter factory right in the township, because that was the only place I could operate, but I was already seeing signs that this country is going to collapse. And luckily, doing business in South Africa, in Southern Africa, I was already doing good business in Zimbabwe. And I felt, you know what; Zimbabwe – at the time – was an amazing country; the growth, the enthusiasm.
I then managed to convince my wife that in the event that South Africa collapses; let’s start investing in Zimbabwe, let’s move our manufacturing there and I managed to get one of the Zimbabwean companies to do contract manufacturing for me on some of the easier products to make.
Fortunately enough for me; my life is always determined by someone upstairs. On the 17th of November, on the eve of elections, someone decided to torch my factory. Overnight, the 6000 square meter state of the art business cost me at the time R10 million. Right in the heart of the township, it was just destroyed overnight by an arsonist. And obviously then; the question of Zimbabwe, I had to put it aside, because I had to rebuild my current business and fortunately enough, elections were successful, South Africa was successful.
When South Africa started showing signs of disintegration like it happened in Zimbabwe; that’s when I said, you know what? Running away is not an option. So the best way; with my fortunate position – if it is not me, who? And I was really lucky that my family gave me the support to say, look, we’re not going anywhere. We’ve been a privileged family for the last thirty five odd years or so, we are happy.
If you feel comfortable to try – go and try. If you fail, that’s fine. There’s so many things in life; for some you win, some you lose. But this one is an important battle for you to win. And that’s really what led me into politics. I threw my hat in the ring for the DA when they managed to convince me to be their mayoral candidate for the city of Johannesburg.
Did you think you’d win?
Alec, for me, I lost my father at the age of two and I had my grandfather; this young, big Shangaan man called Goose Mashaba. This old man, for some reason, I was everything to him. I was his life and he used to be a security guy at the gate of the Ga-Rankuwa municipalities, so he used to come home by bicycle once a month.
That time when he was there, I was everything to him and he used to really teach me invaluable life lessons. And one thing that he taught me was that everything that I do – I must do it to win. He said, look, you’re not going to succeed doing everything, but the only time you will know you’ve succeeded or you’ve failed is after trying.
So anything in life that I do, I don’t do it to play second fiddle. I do everything to win, and I made it clear; ask the DA – a week after I was elected as their mayoral candidate – I pleaded with them to say, please – tell South Africa that we are going to win Johannesburg, Nelson Mandela and Tshwane.
That was late January 2016. South Africa had just had the national address where Jacob Zuma didn’t say anything – he depressed us. So I said; South Africans are looking for good news – just tell them you’ve put together a team of mayors that are going to win those metros. So… What I do – I do everything to win.
I’m pleased to tell you that Teresa Conradie has also joined us now. Lovely to have you. We’ve been talking a little about the background of Herman Mashaba, but a little bit about your background.
The company that you’re the MD of was the driving force behind this seismic judgment that we had just a week ago today. It’s interesting to note that you’re an all woman company and you’re also non-racial. So you really are positioned for the new South Africa. But maybe; just start off with this challenge to the Electoral Act and why you picked up the cudgels and took it through the courts.
Alec, we really had the privilege of taking it to the Constitutional Court as the last lap in a big relay that lots of wonderful people started off, so I have to really recognise people like Michael Louis; that took it to the Constitutional Court and was turned down in his individual capacity. Mosiuoa Lekota; that brought a private member’s bill in Parliament. And then the Applicants; The New Nation Movement – small, not high-profile. They were even called ‘obscure’ by the court civil society movement, with Princess Chantal Ravel of The New Nation.
So, Merlinn Titus, an attorney from Cape Town, and Alan Nelson, senior counsel from Cape Town – they took the matter up to the Western Cape High Court, where the Application was turned down and our firm, Maphalla Mokate Conradie, MMC Inc. picked it up from there and took it to the Constitutional Court. As you say, we are an all female firm, started off in 1997 – one of the first multi-cultural law firms in South Africa, and I thought that that was one of the good news stories in this recent time where there’s been so much violence against women. So, it was really the result of my passion over 25 years for women empowerment. We’re very proud to be associated with this case.
How’s it going to change politics in South Africa?
Alec, I think it would be a mistake to believe that it’s not going to change politics in South Africa. Certainly, whatever Parliament does, it would need to meet the requirements of this court order. And it couldn’t dilute the court order by making a small minority of the parliamentarians independent candidates. So, in layperson’s terms – I tell my friends – never again will you have the option to only vote for a political party. You will actually have the opportunity to vote for an individual.
So, the way I see it happening now is; the court has given parliament 24 months. It would be very interesting to see who the political parties deploy to the Home Affairs Portfolio Committee, where this will be drafted. It will then be very important for public participation for Parliament to actually decide what the proportion will be of the 400 parliamentarians; how many of them would actually be independent candidates and how many elected according to the proportional representation of the parties. Now, if I could just quickly refer back to the Van Zyl Slabbert Report, on which our clients relied heavily.
The Van Zyl Slabbert Report even recommended that 75 percent of all parliamentarians be independent candidates, but I can’t see that happening. So that will be the first important decision or recommendation for that committee to make. The second would be on which basis; whether we are going to look at the constituency basis. Now our clients with the legal teams were very careful not to be prescriptive and try and already propose an electoral system, because we believe that that will be a Red Herring and that it will just invite too much speculation.
So, if it goes according to the constituency system, I think there will be many, many battles about the demarcations of constituencies. And then there’s a host of other legislation that needs to be considered; whether individual candidates or independent candidates will have to meet the same requirements that political parties now have to meet to be able to register. It would definitely affect the allocation that Parliament now makes to political parties for funds to be able to canvass. It affects the pensions and the benefits of parliamentarians. So we’ve got our work as a civil society cut out for ourselves over the next 24 months.
