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.
As rumours continue to swirl that President Jacob Zuma will reshuffle his cabinet, possibly removing the Minister of Finance from his post, the question is what constitutional or political considerations may limit the powers of the President to hire or fire individual cabinet Ministers. The short answer is that the President has the absolute power, bestowed on him by the Constitution, to decide who serves in his cabinet. But this does not mean that there are no informal political limitations on how this power can be exercised.
South Africa does not have a Presidential system of government, even though we call the head of the executive the “President” (some people still wrongly call the head of the executive the “State President”, a term not used in the Constitution). Instead we have a slightly watered down version of Parliamentary government.
The United States of America has a classic Presidential system of government. In the USA, the President is directly elected by the voters and he or she appoints a cabinet whose members are not allowed to serve in the legislature. The President of the USA need not retain the support of the majority of members of the legislature and cannot, for political reasons, be dismissed by the legislature.
But the powers of the US President are circumscribed in several ways. Notably, many appointments made by the President (including the appointment of Supreme Court judges and cabinet members) must be approved by the Senate, the upper house of the US legislature. When the President nominates somebody for a cabinet position and the Senate votes against the confirmation of that nominee (with a simple majority), the cabinet appointment lapses and the nominee never becomes a cabinet minister.
In South Africa, the President is not directly elected by voters. Instead, he or she is elected by the members of the National Assembly (NA). Ours is a system of parliamentary government because the government headed by the President must always retain the support of the majority of members of the Parliament (or at least one of the houses of Parliament, namely the NA).
If the President loses the support of the majority of members of the NA (which would be the case if the President loses the support of the majority of party leaders who have the power – in terms of the party constitution – to withdraw the support of its MPs for the President), the President cannot survive and will either have to resign (as former President Thabo Mbeki did) or he will be removed by a vote of no confidence in the NA.
Once elected, the Constitution grants the President what at first blush appears to be the absolute power to appoint or dismiss members of the cabinet.
Section 91(2) of the Constitution is clear on this point: “The President appoints the Deputy President and Ministers, assigns their powers and functions, and may dismiss them”.
But because the President is not directly elected by the voters but is elected by the NA, the President also needs to retain the support of the majority party in the NA, and specifically, the leadership of the party (or group of parties) who hold a majority in the NA.
This place political limits on the powers of the President to appoint and dismiss members of the cabinet. If one party holds more than 50% of the seats in the NA (as the ANC currently does), the President must ensure that when he appoints or dismisses cabinet members, he or she takes account the political forces within his or her party or (as is the case with the ANC) within the Alliance (made up of the ANC, Cosatu and the SACP).
Whatever the decision is, the President must be careful not to alienate so many party leaders that he or she runs the risk of losing the support of the majority of leaders in the party who have an immediate say in party affairs, including how MPs must vote and thus in who should serve as President of the country.
So, while President Zuma is not legally required to do so, he would normally consult with at least the top six office bearers within the ANC as well as the leadership of Cosatu and the SACP before appointing or dismissing cabinet ministers.
A decision to appoint or dismiss members of the cabinet is a political decision made by the President. As is the case in any democracy, many different political considerations would influence decisions about cabinet appointments. Some people will be appointed to the cabinet because of their abilities. Others will be appointed because of purely political considerations, regardless of ability.
Let us take President Zuma and the rumoured firing of Finance Minister Pravin Gordhan as an example. If President Zuma decides to fire Pravin Gordhan and then consults widely about it within the party and the Alliance and President Zuma then becomes aware during these consultations that he runs the risk of haemorrhaging support among prominent leaders within the ANC and the Alliance, he may well decide not to reshuffle the cabinet.
But if he gets the impression that the important leaders either support the firing of Pravin Gordhan or will abide by the decision, he would feel much more comfortable to go ahead and fire Minister Gordhan.
If President Zuma goes ahead with firing Minister Gordhan despite strong opposition from party leaders, the party leadership may then turn against him. If this happens, the ANC NEC could then ask the President to resign as President (if this is permitted by the party’s Constitution, a point that is open to debate). But – as apparently happened with the short-lived appointment of Des van Rooyen as Finance Minister – President Zuma could be forced to reverse his decision to fire or appoint a specific cabinet minister.
If the President fires Gordhan and if this move is not supported by the party leadership (however defined) President Zuma would then also run another risk, namely that the party leadership could instruct its MPs in the NA to pass a motion of no confidence in the Cabinet excluding the President in terms of section 102(1) of the Constitution. The President will then be forced to reconstitute the Cabinet along lines dictated to him by the party leaders.
The NA could, for example, indicate that unless Pravin Gordhan is retained as Finance Minister, it would again veto the cabinet. Alternatively, the NA could also indicate that if the President refuses to re-appoint Pravin Gordhan as Finance Minister, the NA would pass a vote of no confidence in the President in terms of section 102(2). If this happens, the President must resign and the NA would have to elect a new President from among its members (which, at the moment, excludes one of the contenders for President Nkosazana Dlamini-Zuma).
It is unlikely that any of these scenarios would come to pass. First, it is unclear how much support Pravin Gordhan has among ANC leaders. Second, it is unclear whether even party leaders who might be upset by the firing of Gordhan, would be prepared to sanction such drastic action against the leader of the party.
But if we leave the example of Pravin Gordhan aside for the moment, imagine a situation where the President fires the most popular member of his cabinet and this creates a huge outcry from citizens. (Imagine for the moment that there is indeed such a cabinet minister who is not only truly beloved, but also revered, by a large majority of South African citizens.) Hundreds of thousands of people march through the streets to protest the move, but the party leaders decide not to act, siding with the party leader and not with the people.
In such a case the party would be entirely within its rights to side with its President. But, this decision would carry some political risk. This is because the unpopular decision would become closely associated with the party as a whole (as the party has acquiesced in the decision). The party would then run the risk of being punished by voters for accepting the extremely unpopular or unwise decision by the President.
At the time of writing I do not know what the President has decided to do. In making his decision the President will have to consider the political consequences of his decision. If Minister Gordhan is dismissed, it would mean that the President has decided that his position within his own party is strong enough to survive any unhappiness about such a dismissal.
As always, it will be voters who will have the final say in the matter. Voters will ultimately decide whether they support the move or whether they are so aggrieved by it that they are prepared to vote the governing party out of power at the next election.
This is, ultimately, how democracy works.BACK TO TOP