Quote of the week

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.

Khampepe J
Zuma v Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector Including Organs of State and Others (CCT 52/21) [2021] ZACC 28 (17 September 2021)
6 December 2006

President’s power to appoint Premiers undermine Constitution

When the ANC gave the President the power to appoint the Premiers of the provinces where they had won the election, it was seen as a genuine attempt to bring stability to the fractious regions. I must confess, at the time I did not give it a second thought.

It now turns out that from a constitutional perspective it was a disastrous move. It has unintentionally eroded the power and prestige of both the legislative and executive arms of government in the provinces. It has also fundamentally undermined the Constitution.

Take the case of poor embattled Premier of the Western Cape, Ebrahim Rasool. He has now confirmed that pressure was put on him by the “top five” members of the ANC in the Province to change the composition of his cabinet.

Of course, the ANC in the province can theoretically easily get rid of either Rasool and/or the members of his cabinet by passing a vote of no confidence in the Premier as mandated by section 141 of the Constitution. They can then elect a new Premiere and he or she can elect a cabinet that will have the confidence of the ANC members in the legislature.

But no, wait, they cannot do so because they are disciplined members of the ANC and cannot undermine the Premier, which was supposed to be elected by the provincial legislature and accountable to that legislature, but was in fact appointed by the President and leader of the ANC.

If they now make moves to topple Rasool or members of his cabinet they would be defying their leader and would therefore be seen as ill-disciplined cadres of the Movement.

The President has therefore, in effect, usurped the constitutional powers of the legislature to appoint and fire the Premier and his or her cabinet. At the same time, the Premier and the cabinet does not always have an independent power base because they serve at the pleasure of the President.

This means the ANC and the decisions of its leadership is elevated above the provisions of the Constitution. I am sure this was never intended, but this has been the consequence of the decision in Mafikeng.

At the next ANC conference surely one of the most important decisions should be to take the power to appoint Premiers (and Mayors) away from the President and give it back to the Provinces where it belongs.

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