As seductive as certain perspectives of international law may appear to those who disagree with the outcome of the interpretative exercise conducted by this Court in the contempt judgment, sight must not be lost of the proper place of international law, especially in respect of an application for rescission. The approach that my Brother adopts may be apposite in the context of an appeal, where a court is enjoined to consider whether the court a quo erred in its interpretation of the law. Although it should be clear by now, I shall repeat it once more: this is not an appeal, for this Court’s orders are not appealable. I am deeply concerned that seeking to rely on articles of the ICCPR as a basis for rescission constitutes nothing more than sophistry.
News reports this weekend suggested that the ANC National Executive Committee was negotiating with President Thabo Mbeki to appoint Kgalema Motlanthe, the new Deputy President of the ANC, as a second Deputy President of the country. The idea is to parachute a member of the new ANC “top six” into the executive and ensure a smooth transition when President Mbeki steps down next year.
This, would, however not be possible as South Africa’s 1996 Constitution does not provide for the appointment of more than one Deputy President. In the so called “interim Constitution” provision was made for the appointment of two Deputy President to accommodate the leader of the second largest party in the National Assembly – at that stage FW de Klerk. But it was never really a practical arrangement to have two Deputy Presidents – it was very much a product of the democratic transition.
Section 91 of the 1996 Constitution provides for the President to appoint a cabinet that includes a Deputy President. This means that the power to appoint (and, of course, to fire) any of the members of the cabinet – including the one Deputy President – is constitutionally preserved for the President alone.
The President must appoint the Deputy President from among the members of the National Assembly. Although the President has a choice to appoint two ordinary cabinet members who are not members of the National Assembly, he does not have this choice with the Deputy President who must be a member of the NA.
But as was reported in the press, Mr Motlanthe would only be able to become a member of the NA in April because at present he is not on the ANC electoral list from which new members to the NA are augmented when a member of the NA resigns or stops being a member of the NA. And the Electoral Act provides for this list only to be augmented once a year. This year the list can be augmented in April only. Mr. Motlanthe could therefore only become Deputy President at the very earliest in April 2008.
There is of course a snag with this scenario. Well two snags. First, the President will first have to fire the existing Deputy President, Phumzile Mlambo-Ngcuka, and it is is difficult to imagine that he will do this. The ANC NEC could of course order him to fire her, but he has no constitutional obligation to do so. If he refuses, then the National Assembly can institute of vote of no confidence in him and his cabinet and he will have to resign, which will require the appointment of a new President.
The second snag is that only the President can appoint a Deputy President and in principle the ANC NEC cannot order him to appoint Motlanthe or anyone else as Deputy President. Party discipline and the threat of being fired by the National Assembly could of course force Mbeki’s hand, but this is not a sure thing. If he resists, we will have a very interesting scenario in which ANC members of the NA will be instructed by the NEC to vote to oust Mbeki and they will have to decide where their loyalties lie.
As the ANC NEC will have a big hand in deciding who is on the ANC electoral list for the next National Assembly elections next year it may well be that NA members would obey the instructions form Luthuli house but this is not a certainty. We live in interesting times indeed.BACK TO TOP