The legal profession is most reviled for its paradoxes. Architects of legal precepts pay attention to specificity and precision. The law must be precise and finely tuned.
At the same time, the law makes room for interpretation in application of the law and development of the common law to give effect to rights and curtail wrongful acts. Form, in law, is about structure and technical requirements, whereas substance is about underlying intent or intrinsic properties. Discourse on form over substance is considered quaint and therefore avoidable, even when we know that these paradoxes ought to be traversed with utmost circumspection. If not, innocent people get jailed and slick lawyers free people who are guilty. So managing ambiguities is a rivalled, eternal struggle.
Take the storm over the national dialogue. What are its intrinsic properties and how should they be managed while considering optics? It now looks like the wheels are coming off. The DA is out. Its leader, John Steenhuisen, has complained that President Cyril Ramaphosa “cannot even dialogue meaningfully with his own coalition partners, so there is little point in pretending there is any substance to an ANC-run national dialogue”.
DA federal chair Helen Zille has called it a “sham” and believes it will be a “hollow exercise” without the DA. To this, former president Thabo Mbeki responded, in part: “It is very good that, at last, Ms Helen Zille has openly expressed her eminently arrogant and contemptuous view of the masses of the people — that these cannot think and plan their future correctly without the DA!”
The legacy foundations have also expressed alarm about how it is managed, saying Ramaphosa’s office is prescriptive and, as a consequence, they are withdrawing their participation in the preparatory task team that was to set the stage for a nationwide dialogue.
Ramaphosa has said that with or without doubting Thomases, the show will go on. Indeed, it must. Mbeki, in his open letter to Steenhuisen, said he found the DA’s decision not to participate in the dialogue “both misplaced and very strange indeed, as well as even being against its own very direct interests”. Now the Mbeki foundation, like other legacy foundations, is pulling out. Somewhat. They explain that it is not pulling out of the national dialogue, but out of the preparatory task team and the August 15 first national convention. It’s much of a muchness, really. The foundations are not totally withdrawing because they don’t want to act like the very DA that Mbeki has criticised.
Their concerns about the national dialogue seem legit. They say that “what began as a citizen-led initiative has unfortunately in practice shifted towards government control”. They seem hobbled by bureaucracy. It’s about control. Whose national dialogue is it? In truth, it ought to be citizen-led, otherwise it loses credibility. It sends the message that the very people responsible for the poor state of the nation want to lead a process to change something they have had the power to change for 30 years but have not.
The foundations add: “The rushed timeline, constrained logistics and limited interactive design mean that the proposed convention no longer offers a meaningful platform for engagement. The structure risks becoming symbolic rather than substantive — more performance than participation.” The government has the resources and must account for how they are used. They, on the other hand, don’t want to share accountability for processes they were not sighted on.
Would we feel better not to dialogue while not accomplishing much, or to at least feel heard, even if those listening won’t do much about the outcome of such a dialogue? Which is worse?
They know their own comrades. They remember how easy it was to loot funds meant for Nelson Mandela’s funeral. They remember, too, how funds meant to help people at the height of the Covid pandemic were pilfered. So, with a figure of R700m bandied about, do they acquiesce and hope for the best (even with promises by the government to whittle down the figure)? Or do they withdraw, behaving like the DA?
Their last point is even more apt: “Fixation on the August 15 date risks turning the convention into a performative milestone, rather than a meaningful launch of a national process. Deadlines cannot override substance. Dialogue cannot be built on haste. The national dialogue is a generational opportunity ... But we cannot pursue that goal by cutting corners, centralising power or rushing the process.”
Despite the protestations, Ramaphosa has put his foot down. The national dialogue is neither about the DA nor foundations. It’s about all of us. The show, as he said, must go on.
As a country, we must be careful what we unleash on ourselves and to what end. I believe in dialogue. Not one meant to pacify, but one that helps move the needle. Most leaders do the basic thing taught in most business schools — make people feel heard. It’s cathartic. People are allowed to ventilate their (known) frustrations. In the end, they promise something tangible will come out of the dialogue, or even vituperation.
Our options seem limited. Would we feel better not to dialogue while not accomplishing much, or to at least feel heard, even if those listening won’t do much about the outcome of such a dialogue? Which is worse?
The truth is, our leaders — including those in the foundations — have contributed to a lack of public trust in political leadership. We don’t need a dialogue to tell us what is wrong with our country. The national development plan was preceded by a diagnostic report that highlighted all challenges. We know them. We know, too, the eyesore that is Alexandra township, whose people’s pain is accentuated by their proximity to the opulence of Sandton. If Alex couldn’t be changed in 30 years, how is a rushed dialogue going to change that?
The national convention on August 15 must not, as the foundations warn, be about performative politics. It must not be a cynical attempt to create a veneer of progress. We must not prioritise form over substance.
The national dialogue will make sense if it earnestly starts a process of ensuring that the economy benefits all South Africans. That is not a thing to rush, but to do with honesty in our hearts. The future of the country depends on the substance, the intent and the intrinsic properties of the discourse.
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