No, a political party cannot sabotage the election of the President by refusing to participate in the election of the President by the National Assembly

With the ANC now holding only 159 of the 400 seats in the National Assembly, and assuming that the 87 DA MPs will not support a presidential candidate put forward by the EFF or MK, three possible scenarios could play out in the coming weeks. But what is clear, is that a political party cannot sabotage the election of the President by refusing to participate in the election of the President by the National Assembly.

After the final declaration of the election results on the night of Sunday 2 June 2024, all eyes will now turn to the first sitting of the National Assembly which “must take place at a time and on a date determined by the Chief Justice, but not more than 14 days after the election result has been declared”. It is at this first sitting that the NA is required to elect a new President as well as a new Speaker and Deputy Speaker.

This election must take place regardless of whether any agreement has been reached among the relevant political parties on forming a coalition government. If an agreement is reached before the first sitting, the election of the Speaker, Deputy Speaker, and President should be uneventful.

But if no agreement is reached, political parties might have to make difficult decisions on who to nominate for these positions and — if more than two candidates are nominated — which candidate its MPs should vote for in each round of voting.

These elections must be conducted in terms of Schedule 3 of the Constitution, which requires a candidate to win an absolute majority of the votes cast in order to be elected. If more than two candidates are nominated for a position and no candidate wins an absolute majority of votes in the first round, the candidate who received the fewest votes is eliminated and another round of voting is then held, until a candidate receives an absolute majority of the votes.

It is important to note that the “absolute majority” of votes required is not the absolute majority of the seats in the NA (thus 201 votes), but an absolute majority of the votes actually cast.

If a political party boycotts the first sitting of the NA or MPs of that party refuse to take up their seats, or if its MPs abstain from voting or spoil their votes, it will reduce the number of votes required to win an absolute majority. This means that a political party cannot sabotage the election of the President by refusing to participate in the election of the President by the National Assembly.

For example, if 180 MPs vote for candidate X, 170 MPs for candidate Y and 50 MPs for candidate Z in the first round of voting, another round of voting would be needed as no one would have received an absolute majority of the votes, which would be 201.

But if the 50 MPs who voted for candidate Z had abstained from voting instead, candidate X would have won the election with an absolute majority of the votes as he or she would have won more than the 176 votes required to win an absolute majority of the 350 votes cast.

Incidentally, parties who believe they can trigger a fresh election by delaying the election of a new President for at least 30 days are barking up the wrong tree. This is so because the Constitution requires the vote to take place at the first sitting of the NA after the election. Any delay in voting would therefore be in breach of the Constitution.

But more importantly, section 50(2) of the Constitution, which allows the acting president to dissolve the National Assembly if the NA fails to elect a new President within 30 days after the vacancy occurred, is not applicable to the current situation. Section 50(2) is only applicable when there is a vacancy in the office of the President, but after an election, the President continues in office until a new President is elected, which means there is no vacancy.

This is made clear by section 88(1) of the Constitution that states that the “President’s term of office begins on assuming office and ends upon a vacancy occurring or when the person next elected President assumes office”.

Moreover, section 53 of the Constitution makes clear that only one third of the members of the National Assembly needs to be present before a vote may be taken on any question before the Assembly. Section 46 of the Constitution which states that the Assembly consists of no fewer than 350 and no more than 400 women and men is completely irrelevant, as it refers to the size of the Assembly and not to the quorum required to make a decision. The Assembly has already been constituted through the election. If MK members decide not to be sworn in, the size of the Assembly does not magically change. All it would mean is that fewer members would be present to vote for the President.

In a parliamentary system of government like ours, the formation of the government hinges on the election of the President. The President, who serves as both the head of state and head of the executive, has the power to appoint the deputy president and other members of the Cabinet.

Formally, the President thus enjoys an absolute discretion on who to appoint to his or her Cabinet. But in practice, there will always be political constraints on the President when appointing a Cabinet — more so when the President’s party holds fewer than half of the seats in the NA.

With the ANC now holding only 159 of the 400 seats in the NA, and assuming that the 87 DA MPs will not support a presidential candidate put forward by the EFF or MK, three possible scenarios could play out in the coming weeks.

Scenario one

First, if no coalition agreement is reached between the ANC and any number of other parties before the first sitting of the NA, and assuming the DA will either abstain from voting in the final round or support the ANC candidate, the ANC candidate would be elected President, and he or she would then have to form a minority government. This government would only survive if the DA and other parties refrain from supporting a vote of no confidence against the President and his or her Cabinet in terms of section 102 of the Constitution. A minority government may also face other difficulties, for example, by struggling to pass the national Budget.

Scenario two

Second, the ANC could reach a confidence-and-supply agreement with one or more parties that would ensure the election of the ANC candidate as President, as well as support for the passing of important legislation like the Budget, and would include an agreement not to support a vote of no-confidence in the President and his or her Cabinet.

In such a scenario, there would be no coalition government as the other parties would not take up Cabinet posts. There would still be a minority government, but the government would not be as unstable as a minority government without a confidence-and-supply agreement.

Scenario three

Third, there could be a comprehensive coalition agreement between the ANC and any number of combinations of other parties that would allow co-governance. To be relatively stable, such an arrangement would require more than mere agreement on the Cabinet positions allocated to each party. It would also have to include agreement on the non-negotiable policy positions of the coalition, and on the establishment of mechanisms to resolve conflict among coalition parties.

Such an arrangement would also have to include agreement on the election of the Speaker and deputy Speaker and on which party would chair which of the portfolio committees in the NA.

The rules of the NA provide that the members of each portfolio committee elect a chairperson at its first sitting. In the past, this meant that the ANC candidate was elected as chair to all portfolio committees with the exception of Scopa as the ANC had the majority of seats on all committees. With no party enjoying a majority of seats on any committee, it would mean that if no coalition agreement is reached, the election of every chair of every portfolio committee would be contested, potentially leading to instability in the NA.

The rules of the National Assembly may in any event have to be reviewed as it currently bestows certain privileges on the majority party in the NA. For example, the chief whip, who plays an important role on several committees, is currently defined as the chief whip of the majority party. But the rules are silent on what happens if no party secures a majority in the NA, nor does it define “majority party” to make clear whether this also refers to the largest party in the NA.

Appointments by President

Another factor that would have to be considered by potential coalition partners is whether they would be given any say over the appointments made by the President in his or her capacity as President. I am thinking here about the appointment of the leaders of the judiciary, the head of the Defence Force and the SAPS, the National Director of Public Prosecutions, ambassadors and the like.

How to deal with collective Cabinet accountability would also have to be agreed on. As members of Cabinet are collectively and individually accountable to Parliament for the exercise of their powers and the performance of their functions in terms of section 92(2) of the Constitution, individual Cabinet ministers who disagree with a policy adopted by the Cabinet would in principle still be accountable for those policies.

This might pose problems for smaller coalition partners who would run the risk of being blamed by voters for policies of the coalition government they had vehemently opposed, unless a mechanism could be found to allow for certain types of public disagreement between coalition partners.

A last quirky detail: If Cyril Ramaphosa is re-elected as President at the first sitting of the NA, section 88 of the Constitution may become of pivotal importance when votes of no-confidence are tabled. This is because section 88(1) of the Constitution states that the “President’s term of office begins on assuming office and ends upon a vacancy occurring”, which means that if he is removed through a vote of no-confidence after a few weeks or a few months in office, he would have served his second term and would not be eligible to be re-elected at a later date.

It is impossible to know at this stage whether a coalition agreement will be reached, either before or after the election of the President, and if this happens, which parties will join such a coalition.

But what is certain is that the stability of the incoming government will depend to a large extent on whether the leaders of the relevant parties have the political maturity to manage this volatile situation in the interests of the country.

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