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.
After the shotgun marriage between the Democratic Alliance (DA) and Agang ended in tears this week, it emerged that the main sticking point between the DA and Mamphela Ramphele was whether Ramphele would remain the leader of Agang while serving as the DA’s “presidential candidate”. This disagreement raises several interesting constitutional points about our system of representative democracy.
In a democracy like ours in which members of the National Assembly (NA) are elected in terms of a pure proportional representation electoral system and in which the head of the executive is not directly elected by the population, it is impossible to fulfil your political ambitions without belonging to (and becoming an influential member of) a political party.
The pure proportional representation electoral system is aimed at ensuring full participation of large and small parties, as well as diverse identity groups and constituencies, in the work of the legislature.
It prevents gerrymandering – the drawing of constituency boundaries with the aim of unfairly advancing one political party above others – and limits the corruptive influence of special interest money on individual MPs. (Of course, the system does not limit the corruptive influence of private sector money on the political parties and their policies.)
The system may also lead to forced co-operation between political parties when none of the parties are able to secure an outright majority – which regularly happens where parties gain seats in direct proportion to their electoral support – forcing coalitions to govern the country.
In this system, party leaders usually retain decisive control over their MPs because MPs can only be elected and re-elected to the NA if they can manage to secure spots high enough up on their party’s candidate’s list, the composition over which the party leaders of almost all parties retain a final veto power.
This is in stark contrast with the first-past-the-post electoral systems in which the country is divided into separate geographical constituencies and the candidate who obtained the largest number of votes in the constituency (whether this is 20% or 90%) is sent to Parliament.
The latter system is aimed at ensuring stable governments by producing artificial majorities for the winning party (who may or may not have received the largest number of votes and often receive as little as 35% of the total vote). It is also supposed to strengthen the link between MPs and voters as relatively informed voters would at least be aware who is representing them in the NA.
In our system we vote for a political party by making a cross on the ballot paper next to the picture of the leader of the party of our choice. Despite the appearance of the picture of the leader of the party on the ballot, formally we do not vote for the leader of the party or for any specific candidate, but for the party as a whole and for its entire candidate’s list.
Formally the voters therefore do not vote for “presidential candidates” at all as the President is not elected by the voters but by the members of the NA. (In effect the President is elected by the few thousand delegates who attend the majority party’s elective conference.)
In theory, voters would look at the candidate’s lists of various parties, the quality of their leaders, as well as the policies of the parties, and will then choose the party that best represents their aspirations, world view and ideological commitments. In practice a more complex set of factors probably influence voter choices (including perceptions about the leader of a political party).
You can only be elected to the NA or to provincial legislatures if you appear high enough up on the candidate’s list of a party to enable you to be elected. You can never be elected to the NA as an individual – only as a member of a political party representing the values and interests of that party of whom you are a member.
Section 47(3)(c) of the Constitution makes clear that you can only remain a member of the NA if you remain a member of the political party who nominated you and from whose list you became a member of the NA. You can therefore not remain a member of one political party and then go to the NA via another political party by having your name placed on that other political party’s candidate list. Your placement on the candidate’s list of the party you are not a member of would be invalid and you would be automatically be disqualified from taking up your seat in the NA.
This means that it is impossible to be elected to the NA without being a member of a political party and without being placed sufficiently high up on your party’s candidate’s list. An individual without an affiliation to a political party can never be elected to the NA. As we shall see, such an individual could also never become President.
To prevent “floor-crossing” the constitutions of all political parties contain a clause which states that you automatically lose your membership of the party (and hence your seat in the National Assembly) if you become a member of another political party.
This means that it was never going to be possible for Mamphela Ramphele to appear on the DA’s candidate’s list while remaining a member of Agang. The constitutions of both parties and the Constitution of the country makes this “unique solution” impossible.
However, if you are elected to the NA as the member of one political party (say Agang), this does not mean that another political party (say, the DA) cannot support your nomination for President of the country.
Section 86 of the Constitution states that the elected members of the NA must elect a President from among its members at its first sitting after an election, and whenever necessary to fill a vacancy. This means you cannot be elected President by the NA if you have not been high enough up on the candidates list of the party you are a member of to be elected to the NA. Once elected President of the country, you immediately cease being a member of the NA.
In practice, the leader of the party who obtained more than 50% of seats in the NA will be elected as President. However when no party manages to obtain at least 50% of seats in the NA, parties will have to negotiate to form a coalition government, which will include negotiations about who the parties of the coalition will elect as President.
For example, if, say, the ANC received 45% of the vote nationally and the Economic Freedom Fighters 10%, they could form a coalition government. But if they do, they will have to decide whether they will elect Jacob Zuma, Julius Malema or anyone else as president. If the coalition disintegrates, the EFF (along with all other opposition parties) could then support a vote of no confidence in the president, which would bring the government to a fall.
If Mamphela Ramphele is elected to the NA as an Agang member on the Agang candidate’s list, then she can be nominated as one of the candidates for president by fellow members of the NA. The DA – or any other party – may, at that stage, decide to support her nomination and she would then, in practice, become the DA”s “presidential candidate”. But as the ANC will almost certainly obtain more than 50% of seats in the NA, this will be a purely symbolic nomination with no real effect.
Being elected to the NA on a political party list is also important for another reason. The president must appoint the Deputy President and all but two of his or her cabinet members from among the members of the NA.
You can therefore not become deputy president if you have not been elected on a political party ticket to the NA. You can be appointed as a cabinet minister without having been elected as a member of the NA, but there are only two spots in the cabinet for such posts.
All this demonstrates that unless you happen to impress the president of the day to the extent that he or she appoints you to the cabinet as one of two non-NA members, the only way you can ever play a role in the NA or in the executive is by becoming an important and trusted person within a political party.BACK TO TOP