POLITICS
13/12/2016 18:48 SAST | Updated 03/03/2017 11:14 SAST

Constitution 20: How The National Party Almost Railroaded Our Democracy's Founding Document

In May 1996, FW de Klerk, then deputy president, was considering voting against the draft constitutional text. Five hours in a chicken takeway shop changed all that.

During the negotiation period, between 1990 and 1996, there were a number of sites that saw momentous events take place - the World Trade Centre, Boipatong and Parliament were all sites that saw the course of South African history change. But a nondescript, takeway fried chicken outlet in Cape Town's foreshore, holds a similar place in Constitution-making lore. The Constitution is exactly 20 years old this year, and was ratified on December 10, 1996.

During the night of Friday, May 3, and in the early hours of Saturday, May 4, four National Party (NP) officials ate takeways at a shop that is today long gone but which in 1996 sat roughly in the vicinity of the Cape Town International Convention Centre, and there drew up a document which sought to prevent F.W. de Klerk, NP leader and deputy president, from asking his caucus to vote against the draft Constitution the following Wednesday, May 8.

During the night of Friday 3 May, and in the early hours of Saturday 4 May, four NP officials ate takeways and drew up a document which sought to prevent FW de Klerk from asking his caucus to vote against the draft Constitution.

"We went there just before 24:00," Leon Wessels remembers. "And we talked and talked. The next thing we knew it was 05:00 and we ordered bacon and eggs!"

De Klerk, on that Friday, "openly flirted" with not supporting the draft Constitution and his attitude emboldened the party's conservative wing. Wessels, along with Roelf Meyer, the NP's lead-negotiator, gave notice to De Klerk and his kitchen cabinet that they were going to support the draft Constitution, come what may. They, along with two advisors – Rassie Malherbe and Abré Hanekom – decamped to the takeway joint, determined to construct an argument to convince De Klerk not to go down that route.

This argument is contained in the eight-page, so-called "Malherbe Paper", of which very few are in circulation, and which formed the basis of De Klerk's eventual decision to vote in favour of the draft Constitution.

READ MORE ABOUT THE MALHERBE PAPER:The paper argues that even though there were issues outstanding, enough gains were made, clauses agreed upon and rights retained to enable the National Party to support the draft constitutional text.

The Malherbe Paper spells out the dangers if the NP decides not to vote in favour of the country' founding document, and measures the NP's negotiating targets against actual achievements during the arduous and winding negotiation process.

This argument is contained in the eight-page, so-called "Malherbe Paper", of which very few are in circulation, and which formed the basis of De Klerk's eventual decision to vote in favour of the draft Constitution.

In the end, the foursome's recommendations are unambiguous: "The NP can hardly vote against a constitution if it subscribes to constitutional principles and if it contains (the NP's key and non-negotiable) constitutional characteristics. There is an enormous responsibility on the NP to ensure the ANC does not finalise the Constitution on its own."

'Ramaphosa spoiling for a fight'

Wessels, a former NP cabinet minister, was deputy chairperson of the Constituent Assembly, the body tasked with converting the interim Constitution into a final document. Time was against negotiators and the deadline of 8 May was looming.

"Cyril Ramaphosa (chairperson of the Constituent Assembly) told me we need to stick to the deadline, and after a conversation with Thabo Mbeki (also a deputy president) we agreed it would send a fantastic message to the world if we could do so," says Wessels.

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Leon Wessels (left) and Cyril Ramaphosa on 8 May 1996, the day MP's adopted the draft text of the Constitution.

But there were a number of sticking points going into the last week of negotiations, conducted by a multiparty negotiating council. Those issues were whittled down to three during the course of the week, but by Friday the strongmen in the NP caucus were refusing to budge on three clauses.

"We were sitting in the negotiating council, Cyril and I chairing, and it didn't sound like a negotiating process at all, people were attacking each other over everything. The NP's team was refusing to budge on three clauses: the lock-out clause, guarantees for single medium schools and land reform.

The NP's team was refusing to budge on three clauses: the lock-out clause, guarantees for single medium schools and land reform.Leon Wessels, deputy chairperson of the Constituent Assembly

"Cyril leaned over to me and said: 'I can see they're spoiling for a fight. I'm looking forward to it.' By then we had been negotiating for ages, I knew Cyril, saw his mood and I knew the issues around the clauses well. It was a fight they weren't going to win," Wessels says.

'We want to vote for the Constitution'

Deliberations in the negotiating council continued in the afternoon and into the evening. When it adjourned for tea, senior NP members went to caucus in the Old Assembly – the chamber where most apartheid legislation was tabled and where Hendrik Verwoerd, apartheid prime minister, was assassinated exactly 30 years before.

"It was there that those that didn't want to vote for the Constitution came out and strongly voiced their opinions. I replied that it would be unthinkable not to vote for a document we helped shape and that if the instruction came to vote against it, I would not do so," says Wessels.

In fact, he says: "I used rather crude language, which I won't repeat, and said: 'I will not vote with the NP.'"

I used rather crude language, which I won't repeat, and said: 'I will not vote with the NP.'Leon Wessels

Meyer – ever the diplomat – used his cellphone (back then it was brand-spanking new technology) and phoned De Klerk, who was still in his office in the ministerial building across the road, 120 Plein Street (previously the H.F. Verwoerd Building). He said they should ask the negotiating council to adjourn for the day and that Meyer, Wesssels and others should join him "vir 'n dop" (for a drink) in his office.

"They all went to De Klerk's office and I went back to the council, which adjourned and Cyril and I finished up some administrative stuff. I then crossed the road to De Klerk's office, and I knew it was going to be difficult, but it was a fight I was prepared for," Wessels says today.

When he arrived in De Klerk's office he was greeted by an awkward silence, with some of his colleagues glancing at him, but all deferring to the deputy president. "I was in politics for 22 years, and it's easy to see when people have been talking about you behind your back and when they are hostile. When I entered the room I could see they had been discussing me," he says.

De Klerk explained he wasn't convinced that the draft Constitution entrenched the rights and principles the NP bargained for and that he wasn't convinced the three outstanding issues could be addressed before Wednesday.

Wessels, who was MP for the volatile Krugersdorp and had been branded a traitor by some constituents, told his colleagues during the South African War – or the Boer War – the women recognised whether or not their menfolk were victorious by the sounds of the horses' hoofs. "Gentlemen, this is the same. Listening to you it seems like you have lost," he recalls telling them.

He was careful not to offend or challenge the leader with other senior ministers and MP's present, but he wasn't about to budge, and told De Klerk: "Sir, I want to vote for this constitution."

Sir, I want to vote for this constitution.Wessels to De Klerk

De Klerk sent everyone home, and Meyer decided to confer with him alone. "I wanted to talk to him separately from the rest because I didn't want to undermine his authority," Meyer says.

"I then told him, not aggressively or antagonistically, that I supported Leon's assessment of the situation and that we should vote for the draft Constitution. He was noncommittal. I met Leon outside De Klerk's office and we left to go and find something to eat, with our legal advisors in tow."

Constitution-making in a takeaway place

Neither Wessels nor Meyer can remember exactly what the takeaway place they went to was called, with Wessels saying, "It might have been a Chicken Licken, but I don't recall".

The two politicians and their support staff arrived just as the midnight revellers were also flocking there to order some deep fried and greasy chicken. "I had something light, a salad, and we sat in a corner and started working," says Wessels.

There were no bodyguards and no official vehicles outside. Just four men, eating takeaways and trying to bring the process which De Klerk started in 1990 to its logical conclusion. Cape Town's nightlife was pumping, but the four were undisturbed.

There were no bodyguards and no official vehicles outside. Just four men, eating takeaways and trying to bring the process which De Klerk started in 1990 to its logical conclusion.

"Malherbe was taking notes while we were going through the whole process from start to finish," Wessels says of that night. "We discussed the gains, the losses and what was on the table. People were coming in the whole time, ordering food, and leaving. Nobody recognised us or realised what we were busy with. People had no clue."

When Wessels and co ordered eggs and bacon at around 5am on the Saturday, they agreed on the urgency of the matter and Malherbe left to type the document up so Meyer could forward it to De Klerk.

Meyer discussed the Malherbe Paper with De Klerk before they met Mbeki and Ramaphosa on Sunday. That Monday, De Klerk announced the NP would be supporting the draft text.

Those few days, before the vote in the Constitutional Assembly, were the most critical of the whole process, Wessels says. When MPs voted on 8 May, Ramaphosa asked him to chair the sitting of the Constitutional Assembly.

"I looked across to the NP caucus, everyone with stark expressions on their face and I thought to myself: 'They represent the past. Today represents the future,'" he says.

Postscript: The NP left the Government of National Unity the following day. Wessels retired from politics after the vote and later became a human rights commissioner. Meyer resigned from the NP to help found the United Democratic Movement and currently works as a conflict resolution specialist. Neither De Klerk nor Ramaphosa's offices responded to requests for comment.