Quote of the week

Mr Zuma is no ordinary litigant. He is the former President of the Republic, who remains a public figure and continues to wield significant political influence, while acting as an example to his supporters… He has a great deal of power to incite others to similarly defy court orders because his actions and any consequences, or lack thereof, are being closely observed by the public. If his conduct is met with impunity, he will do significant damage to the rule of law. As this Court noted in Mamabolo, “[n]o one familiar with our history can be unaware of the very special need to preserve the integrity of the rule of law”. Mr Zuma is subject to the laws of the Republic. No person enjoys exclusion or exemption from the sovereignty of our laws… It would be antithetical to the value of accountability if those who once held high office are not bound by the law.

Khampepe j
Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State v Zuma and Others (CCT 52/21) [2021] ZACC 18
10 August 2017

Early election won’t happen – although it is provided for in the Constitution

After the National Assembly (NA) again rejected a vote of no confidence in President Jacob Zuma earlier this week (albeit with a much narrower margin than on previous occasions), one would have thought attention would be turned to solving the many other – seemingly intractable – problems South Africa face. These problems include a lacklustre economy who was recently downgraded to junk status; exceptionally high and unsustainable levels of unemployment; racialised economic inequality; deeply embedded racism, sexism and homophobia; and of course the endemic corruption that has brought many state owned enterprises close to collapse and contributes to many of the other problems faced by the country.

Because President Zuma is part of the problem (see junk status and corruption mentioned above) and because few, if any, of South Africa’s problems will be addressed effectively as long as he is President, South Africans will probably continue to obsess about his presidency. Unfortunately, in this heated environment some people seemed to have entirely lost their minds and have been making false and sometimes deeply anti-democratic claims. So here I have to go again, setting the record straight about two such claims.

Claim 1: Parliament can be collapsed and new elections can be held if more than 50 MPs resign from the NA.

 Answer: False 🤥🤥🤥🤥

Section 46(1) of the Constitution states that the NA “consists of no fewer than 350 and no more than 400 women and men elected as members in terms of the electoral system”. This has led some people – most notably Economic Freedom Fighters (EFF) leader Julius Malema – to argue that if more than 50 MPs resign from the NA, the NA collapses because it will consist of less than 350 members.

But this is a spectacular misreading of the Constitution. When the Constitution was negotiated there was some disagreement about the ideal size of the NA. Some parties wanted the number of MPs to be reduced from 400 to 350 or even 300. As a classic compromise the Constitutional Assembly devised section 46(1) which allows the legislature to decide on the size of the NA but prescribes to the legislature that it could not reduce the size to below 350 MPs and could not increase the size over 400.

Item 4(3) in Schedule 6 further contains a transitional arrangement which provided that the NA would consist of 400 members for the duration of its term that expired in April 1999. After that legislation could determine the size (as long as it was not smaller than 350 and not larger than 400).

This is exactly what the Electoral Act 73 of 1998 does in item 1 of Schedule 3 where it provides a formula to determine the size of the NA. This item states:

By taking into account available scientifically based data and representations by interested parties, the number of seats of the National Assembly must be determined by awarding one seat for every 100 000 of the population with a minimum of 350 and a maximum of 400 seats.

As South Africa’s population is now larger than 40 million, the Act has set the size of the NA at 400 members as prescribed by section 46(1) of the Constitution.

When 60 MPs resign their seats, the size of the NA does not dip below 350. It remains 400. All that happens is that there will be 60 vacancies in the 400 member NA. The NA will continue to do its work – although 60 opposition MPs will be missing from the NA when it does so. There will be no election. End of story. 400 MPs were elected to the NA as required by section 46(1) – whether some of them resign in a huff, is neither here nor there.

The provision that might be relevant is not section 46(1), but rather section 53(1) of the Constitution. This section states that (except where the Constitution provides otherwise) a majority of the members of the NA must be present before a vote may be taken on a Bill or an amendment to a Bill. This means no legislation can be passed unless there are at least 200 MPs present in the NA.

This means the NA could be rendered toothless if at least 201 MPs resign. Although it would be able to meet, it would not be able to pass any legislation. But this is not going to happen. Even if all the opposition MPs resign, the governing ANC would be able to pass legislation with its 249 MPs. The ANC MPs are never going to resign en masse to collapse the NA because, as I explain below, the governing party members would at all cost wish to avoid an election before its own elective conference in December

So, whatever happens, a mass resignation by opposition MPs from the NA will be utterly irrelevant as far as the duration of the NA and the timing of a new election is concerned. The claim is thus four Pinocchio’s false.

Claim 2: By bringing a motion to dissolve the NA to bring forward national elections the Democratic Alliance (DA) is attempting a coup d’état.

Answer: False 🤥🤥🤥🤥

A coup d’état occurs when forces opposed to a government use or attempt to use unconstitutional means in an attempt to remove that government from office. This is not the case here. This move by the DA is as far removed from a coup d’état as Steve Hofmeyr is from being awarded the Nobel Prize for Literature. The DA is bringing a motion in terms of section 50(1) of the Constitution. This section states as follows:

The President must dissolve the National Assembly if: a) the Assembly has adopted a resolution to dissolve with a supporting vote of a majority of its members; and b) three years have passed since the Assembly was elected.

This section makes clear that it is the members of the NA who can dissolve the NA and force new elections but only after three years have passed since the last election and only if 201 of its members support such as motion. Any member of the NA can propose a motion in this regard – as the Constitution entitles them to do so.

However, as the ANC currently holds 249 seats in the 400 seat NA, no such motion can be passed without significant support from MPs of the governing ANC.

As the ANC is currently in some disarray (according to its Chief Whip and other spokespersons) and as even people within the party who are critical of President Jacob Zuma know well that it would be potentially disastrous for the party to go to an early election before the party has selected a new President at its December conference, this motion is not going to pass in a million years.

But even in the unthinkable event that such a motion did pass it would be because the majority of MPs – who, according to the Constitution, are elected to represent the people and to ensure government by the people under the Constitution – decided to support the motion. They might do so, for example, because they believe this is the best way to represent the people who elected them.

This is not the end of the matter though. If such a motion did pass, the NA would be dissolved and new elections would have to be held. Voters would then have to decide which party to vote for. In this unlikely event, the governing ANC will only be removed from government if the majority of voters rejected them and they lose the free and fair election.

I assume the people who claim this is an attempt at a coup (or a “silent coup”) know that they are being dishonest. They must surely all know full-well that, first, it won’t happen and, second, if it happened it would happen in accordance with the provisions of the Constitution. If politicians are saying this despite not really believing what they are saying, it would not be particularly shocking as most of us do not expect politicians to always demonstrate a deep love for the truth.

However, the alternative possibility is almost too scary to contemplate. If people who claim that this is an attempted coup truly believe their claim to be true, it would mean they believe that it is illegitimate to try and use constitutional means to remove the governing party from office. They would then believe that voters are not entitled to vote the governing party out of office in free and fair elections duly called in accordance with the provisions of the Constitution.

In other words, such a view would then be informed by a deeply anti-democratic belief that the governing party has a right to govern – even if it is rejected by the vast majority of voters in a free and fair constitutionally mandated election.

This is very different from arguing – as one has every right to do – that one opposes the move by the DA because in principle one prefers elections only to occur at regular five year intervals or that one believes the DA is just grand standing and seeking publicity. It is also very different from arguing – as many analysts might well do – that it is strategically wrong-headed for the DA to bring a motion to have the NA dissolved, as this will be defeated and will just force the governing party to stand together despite their differences.

Of course exactly the same arguments apply to those who laughably claimed during the debate that tabling a motion for a vote of no confidence in President Zuma was an illegitimate attempt at “regime change”. Really, if you believe that, you will probably also believe that Steve Hofmeyr has already won the Nobel Prize for Lietarture for his hit song “Pampoen”.

The claim is thus four Pinocchio’s false.

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