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.
Newspapers (and the SABC last night) reports that Premiers Ebrahim Rasool and Nosimo Balindlela can only be removed from office by a vote of at least two-thirds of the members of the provincial legislature and then only for incapacity, serious breach of the law or the Constitution or for serious misconduct. This is, of course wrong.
I explained in detail to the reporter from the SABC that a Premiers term can come to an end in at least three ways, but he must either have a political axe to grind or is not very sharp because when the story was broadcast the same nonsense was repeated.
The Easiets way to get rid of a Premier reluctant to give up his or her post is merely to invoke section 141 of the Constitution which allows a provincial legislature to pass a vote of no confidence in the Premier and his or her cabinet after which he or she will have to resign. A vote of no confidence does not require a two-thirds majority but merely a simple majority of the members of the legislature.
So while it is true that Premiers cannot be legally sacked by Luthuli House (unlike members of the legislature who can be sacked merely by revoking their membership of the party), ANC headquarters can instruct the legislature to pass a vote of no confidence in that Premier after which he or she will have to resign. It would therefore be hopeless for a Premier to resist his or her firing because the members of the legislature will have to obey instructions from Luthuli House and will have to pass a vote of no-confidence in the Premier if requested.
Of course, the Premier can also be removed if the legislature adopts a resolution to dissolve itself with a supporting vote of a majority of its members and at least three years have passed since the legislature was elected. The Premiers term will then automatically come to and end and a new legislature can then appoint a new Premier.
The problem is of course that while the Constitution gives the power to appoint and remove Premiers to the Legislature during the Mbeki years the ANC had given this power to Mbeki (since revoked at Polokwane) and newspapers often reported that Mbeki appointed the Premiers. In practice this was correct, but as a technical legal matter it is sloppy reporting as legislatures really appoint the Premier.
It would be interesting to see what would happen if the ANC members of a legislature defies instructions from the President or from Luthuli House and appoints their “own” candidate as Premier. Would the ANC then remove all the members of the legislature? Could it politically afford to do so?
This is just another example of how the provisions of the Constitution are to some degree “subverted” by the practices of the party. That is why I have long advocated for legislation (that exist in countries like Germany) to regulate inter-party democracy in all political parties in South Africa. But both DA and ANC members are horrified by the idea that legislation would regulate their affairs to ensure that they act in a more or less democratic way, so that idea is dead in the water.
Meanwhile it is bey-bey Rasool and Balindlela. As they are not members of the legislature they will now be unemployed. Wonder what on earth they will do.BACK TO TOP