Quote of the week

The unhappy fact that it is journalists, investigating organs of state and officialdom and the political class and their involvement in corrupt practices to loot the State’s resources, who, by so doing, attract the attention of powerful and influential persons who are capable of suborning the apparatus of the State to smell out their adversaries, cannot be ignored. The examples of abuse of the system have been addressed elsewhere in this judgment. Moreover, the respondents’ perspectives assume that the designated judge is not lied to and is diligent… In my view, in the absence of a rebuttal, this example illustrates a grave vulnerability in RJCA that such an apparent abuse could occur. The common cause examples of blatant lies being told to the designated judge further exacerbates the vulnerability of the system.

Sutherland J
Amabhungane Centre for Investigative Journalism NPC and Another v Minister of Justice and Correctional Services and Others
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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