Quote of the week

Remedial or restitutionary equality are not in themselves a deviation from, or invasive of, the right to equality guaranteed by the Constitution. They are not “reverse discrimination” or “positive discrimination” … They are integral to the reach of our equality protection… Equality before the law protection in section 9(1) and measures to promote equality in section 9(2) are both necessary and mutually reinforcing but may sometimes serve distinguishable purposes.. However, what is clear is that our Constitution and in particular section 9 thereof, read as a whole, embraces for good reason a substantive conception of equality inclusive of measures to redress existing inequality. Absent a positive commitment progressively to eradicate socially constructed barriers to equality and to root out systematic or institutionalised under-privilege, the constitutional promise of equality before the law and its equal protection and benefit must, in the context of our country, ring hollow.

Moseneke DCJ
Minister of Finance and Other v Van Heerden (CCT 63/03) [2004] ZACC 3
22 September 2008

Motlanthe to be (acting) President?

It seems to me the ANC and President Mbeki are making heavy weather out of what should be a rather obvious and uncomplicated transition. Why are they being so secretive and why are they so focused on the National Assembly to drive this process?

I was rather surprised last night when President Thabo Mbeki announced yesterday that he had handed a letter to the Speaker of the National Assembly to tender his resignation as President of the Republic of South Africa, “effective from the day that will be determined by the National Assembly”.

As I understand it, the Constitution does not require the Speaker or Parliament to play any role in the resignation of the President. It is therefore strange that the letter was tendered to the Speaker and that the timing of the resignation was abdicated to Parliament.

I am therefore not sure why he said that he will resign on a day decided on by the National Assembly, thereby purporting to abdicate the power to decide when he resigns to one of the other branches of government. It is as if the President is not aware of the provisions of section 90 of the Constitution and is therefore scared that if he resigns before the National Assembly is ready to elect a new President, South Africa will be leaderless.

When a President resigns (or if a President dies in office) a vacancy occurs immediately in his office and in terms of section 90 of the Constitution, the Deputy President takes over as acting President until such time as the National Assembly has had time to gather under the auspices of the Chief Justice to elect a new permanent President from among its members.

If the Deputy President also resigns, the cabinet must designate someone from among its members to act as President until a new President is elected by the National Assembly.

This provision is important because it ensures that South Africa will at all times have a commander in chief and that someone is automatically designated by the Constitution as an acting President until such time as the National Assembly has had the time to elect a new President. We do not want to be caught without a President in charge of our country if, for example, we are invaded by the Swaziland navy.

But maybe the President (and the ANC) is well aware of this provision and knows South Africa at no time will be without at least an acting President. Maybe Mbeki was prevailed upon by the ANC to abdicated the timing of his resignation to the National Assembly to ensure that the Deputy President, Pumzile Mhlambo-Ngcuka, does not act as President for any significant period of time. After all, she is persona non grata amongst pro-Zuma supporters and even having her as an acting President for a day or two would have upset them.

By abdicating the timing of his resignation to the National Assembly, the resignation of President Mbeki and the election of a new President can now be choreographed in such a manner that would ensure a new President is chosen on the same day the National Assembly has designates as the one on which President Mbeki resigns.

I am also quite perplexed why the ANC cannot just tell us – the electorate – who they have decided to be the new President. Now Jacob Zuma has said at a news conference that it will announce the name of the candidate to take over from President Mbeki in Parliament at a later stage. Why the secrecy? Surely they owe it to the electorate to tell us what is happening. This is not North Korea.

The election of a new President by the National Assembly must occur within 30 days after the resignation of President Mbeki. If no President is elected within 30 days, the Parliament will be dissolved and a new election will be held within 90 days.

At the moment Mr. Zuma is not a member of the National Assembly. As I have said before my reading of the Electoral Act is that it would be impossible for Mr. Zuma to become a member of the National Assembly before the next election, so he cannot be elected President before the next election is held.

If the ANC wants Kgalema Motlanthe to take over as President for the next few months, it will therefore either have to get the National Assembly to elect him as a caretaker President who will then serve as President until an election is held next June, or it will have to get the Deputy President to resign and get the cabinet to nominate Kgalema Motlanthe as acting President for the next 120 days until an election can be held.

If Motlanthe is only nominated by the cabinet as an acting President (and he is not elected as caretaker President by the National Assembly within 30 days after the resignation of President Mbeki) a general election will then have to be held within 90 days – which would be some time in January 2009.

This scenario seems unlikely because it would require South Africans to go to the polls in mid-January just when everyone is arriving back from their Christmas holidays.

So, in the next few days Mr Motlanthe will probably be nominated by two members of the National Assembly as required by the Constitution and if no other nominations are made, he will, by default, be elected as President and will serve as full President until the next President is sworn in after the next election which must be held by June 2009.

It is only after that election that Mr Jacob Zuma will then probably become our President. Meanwhile, the big unanswered question is what will happen to Vusi Pikoli.

UPDATE: Die Burger reports that the ANC wants to go for an acting President (Motlanthe) in terms of section 90 of the Constitution and not for the election of a caretaker President until next June. If this is correct we will have to have an election by the end of January.

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