Quote of the week

Regard must be had to the higher standard of conduct expected from public officials, and the number of falsehoods that have been put forward by the Public Protector in the course of the litigation.  This conduct included the numerous “misstatements”, like misrepresenting, under oath, her reliance on evidence of economic experts in drawing up the report, failing to provide a complete record, ordered and indexed, so that the contents thereof could be determined, failing to disclose material meetings and then obfuscating the reasons for them and the reasons why they had not been previously disclosed, and generally failing to provide the court with a frank and candid account of her conduct in preparing the report. The punitive aspect of the costs order therefore stands.

KHAMPEPE J and THERON J
Public Protector v South African Reserve Bank (CCT107/18) [2019] ZACC 29 (22 July 2019)
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.

SHARE:     
BACK TO TOP
2015 Constitutionally Speaking | website created by Idea in a Forest