An ‘important purpose of section 34 [of the Constitution] is to guarantee the protection of the judicial process to persons who have disputes that can be resolved by law’ and that the right of access to court is ‘foundational to the stability of an orderly society. It ensures the peaceful, regulated and institutionalised mechanisms to resolve disputes, without resorting to self-help. The right of access to court is a bulwark against vigilantism, and the chaos and anarchy which it causes. Construed in this context of the rule of law and the principle against self-help in particular, access to court is indeed of cardinal importance’.The right guaranteed s34 would be rendered meaningless if court orders could be ignored with impunity:the underlying purposes of the right — and particularly that of avoidance of self-help — would be undermined if litigants could decide which orders they wished to obey and which they wished to ignore.
The ANC and the President seem to be rather confused about the clear provisions in the Constitution regarding what happens when a President decides to resign. At the news conference earlier today to announce the decision of the ANC National Executive Committee (NEC) to “recall” President Mbeki, Gwede Mantashe said that the Constitution was silent about what must happen when a sitting President resigns and referred to “Parliamentary processes” that will deal with this situation.
Now the Presidency has issued a statement saying that he accepts the decision of the ANC and then continues:
Following the decision of the national executive committee of the African National Congress to recall President Thabo Mbeki, the president has obliged and will step down after all constitutional requirements have been met.
This seems rather perplexing as section 90 of the Constitution makes it very clear what happens when a President resigns. This section states that when a vacancy occurs in the office of President, an office-bearer in the order below acts as President:
If the President resigns (or if he dies or is removed by a vote of no confidence in terms of section 102) a vacancy occurs in the office of the President and this section kicks in. Simple as that. Parliament is not involved at all in the process of designating an acting President and there are no “Parliamentary processes” or “constitutional requirements” to be met. I am therefore not sure what the ANC and the President is talking about. Are they confused?
The Parliament only becomes involved if the President refuses to resign and a vote of no confidence is instituted in terms of section 102(2) of the Constitution or when a new President must be elected from amongst the members of the National Assembly within 30 days after the president’s resignation.
All that is required is for the President to announce his resignation after which an acting President – in the order set out above – will take over until a new President is elected. If the National Assembly decides not to elect a new President, an election must then be held within 90 days.
This all seems rather clear to me. Am I missing something or is there something else going on that these gentlemen talk about “parliamentary processes” and “constitutiona requirements”? I really do not understand.BACK TO TOP