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.
When estate agents want to sell you a dodgy house they smile and say: “Remember, location, location, location!” For politicians one might adopt this phrase to: “Positions, positions, positions!” Could that be why Deputy President Baleka Mbete seemed to have thrown her toys out of the cot yesterday by refusing to be sworn in as a member of the National Assembly after it became known that Kgalema Motlanthe would serve as Deputy President in the Zuma cabinet?
ANC officials – who were clearly taken by surprise – first told journalists that Mbete was not sworn in because if she had been sworn in she would not have been able to act as President in the event of Kgalema Motlanthe not being able to fulfil his duties. This is clearly wrong as section 90 of the Constitution makes clear that when the President is absent or otherwise unable to fulfil his duties as President the Deputy President will act as President.
Later ANC official said that it did not want to create a vacuum in the office of the Deputy President because once sworn in as a member of the fourth Parliament, Mbete would stop being the Deputy President. This is also, how shall I put it, rubbish. Section 94 of the Constitution states that:
When an election of the National Assembly is held, the Cabinet, the Deputy President, Ministers and Deputy Ministers remain competent to function until the person elected President by the next Assembly assumes office.
It could still be argued – not very plausibly – that Kgalema Motlanthe could not be sworn in before Saturday because one cannot be President of the country and a member of the National Assembly at the same time. But the Deputy President must be a member of the National Assembly and in terms of section 94 Mbete would have remained competent to be Deputy President until Saturday.
This means Mbete decided not to be sworn in for other reasons. Could it be that she is not happy that she will be “demoted” from her position as Deputy President? Are we already seeing the first rumblings about positions in the ANC, a full three and a half years before the ANC holds its next conference?
Deputy President Mbete seems to have behaved like a prima donna. Not very disciplined, I would say.
There is no constitutional requirement for Mbete to have been sworn in yesterday. As long as the ANC does not swear in another MP in her place, she will remain eligible to be sworn in as an MP at a future date. If she is not sworn in she cannot become Deputy President and unless the President-elect wishes to use section 91(3)(c) of the Constitution to apoint her to the Cabinet,s he would also have to be sworn in as an MP to serve in the Cabinet.
My guess would be that she is trying to force Mr Zuma to re-appoint her as Deputy President and is making things uncomfortable for the incoming administration as an act of brinkmanship. This does not seem particularly wise as her actions are embarrassing the ANC and the President-elect.
It would be interesting to see what happens when Mr Zuma announces his cabinet. Invariably some ambitious politicians will be disappointed. Will they also do a Ms Mbete or will they fall in line? Never a dull moment in our politics.
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