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.
President Jacob Zuma is obviously a very busy man, what with having to travel to Libya from time to time to chat to his alleged former benefactor Muammar Gaddafi and having to deal with challenges to his leadership from Julius Malema and those who bankroll the ANC Youth League leader. But this does not mean that our President should not properly fulfil his constitutional duty to sign Bills duly passed by Parliament within a reasonable time so that those Bills can be brought into effect.
The National Parliament assented to the Local Government: Municipal Systems Amendment Bill on 19 April 2011. This Bill was then sent to President Jacob Zuma for his assent. President Zuma has not assented to the Bill yet, despite the fact that 49 days have now passed since Parliament passed the Bill. It is unclear why the President has sat on his hands for 49 days without signing this Bill into law. Do his advisors think he has a right not to sign the Bill? If they do, they are mistaken.
There are of course good political reasons why President Zuma might not have wanted to sign the Bill.
The Bill deals with the appointment of municipal managers to try and prevent the nepotism and corruption in the appointment of politically connected but completely unqualified municipal managers. It is a wise piece of legislation that is needed to help stabilise local government and improve service delivery to communities. The Bill states that the appointment of municipal managers will be null and void if the person appointed does not have the prescribed skills, expertise, competencies or qualifications or if the appointment was otherwise made in contravention of the Act.
It also prescribes procedures that must be followed during the appointment of municipal managers. A municipality is required to advertise the post nationally to attract a pool of candidates nationwide and must select from the pool of candidates a suitable person who complies with the prescribed requirements for appointment to the post.
More importantly, the Bill states that a municipal manager or manager directly accountable to a municipal manager may not hold political office in a political party, whether in a permanent, temporary or acting capacity. “Political office” is defined broadly to include an office held in a political party structure at the level of chairperson, deputy chairperson, secretary or deputy secretary, or treasurer of the party at the national, provincial, regional level or any other area in which the party operates.
This means that if the Bill becomes operational, it will end the practice of the redeployment of ANC leaders – from branch level upward – as municipal managers or other senior municipal staff. One can imagine that there must be much unhappiness within ANC structures about this Bill. While the Bill is good for South Africa and for long suffering communities who depend on municipalities to deliver basic services, it will be bad for the ANC as it will weaken its ability to dispense patronage to those who remain loyal to it.
One of the benefits of being the dominant political party in a democracy is to dispense lucrative positions to party members. This power helps to keep party members loyal to the party and prevents defections and too much criticism of party leaders. It is one of the many tools a dominant party has at its disposal to retain its electoral dominance and ensure party discipline.
The Bill will limit the power of the ANC and the DA to provide lucrative positions in municipalities to party stalwarts and will therefore hamper the employment chances of party hacks who might or might not be qualified for the job. No wonder President Zuma, whose style of “leadership” has always been to try and keep everybody in the party happy – even if he has to promise diametrically opposed things to different constituencies – has not signed the Bill into law.
The problem is that the President does not have the power to veto a Bill duly passed by Parliament. Unlike in the United States, where a President can veto any piece of legislation passed by Congress if he does not agree with that Bill, our Constitution does not provide the President with the power to interfere in this way with the legislative branch of government.
Section 79 of the Constitution states that once a Bill has been passed by Parliament the “President must either assent to and sign a Bill passed” by Parliament or, if the President has reservations about the constitutionality of the Bill, must refer it back to the National Assembly for reconsideration. If, after reconsideration, a Bill fully accommodates the President’s reservations, the President must assent to and sign the Bill. I if not, the President must either assent to and sign the Bill, or refer it to the Constitutional Court for a decision on its constitutionality.
What the President cannot do is to refuse to sign the Bill at all. The President may also not unduly delay the signing of a Bill in order to delay the implementation of the Bill. He must either refer it back to the National Assembly because he is of the view that the Bill is unconstitutional, or he must sign it. This is because section 237 states that all “constitutional obligations must be performed diligently and without delay”. One could well argue that by waiting 49 days to sign a Bill duly passed by Parliament, the President is not fulfilling his constitutional obligations diligently and without delay.
If this is indeed a case of the President refusing to sign the Bill, the President would be thwarting the will of Parliament and would be in flagrant breach of the Constitution. If the President is of the view that aspects of the Bill is unconstitutional, one would imagine that – after almost 50 days – he would have had a chance to actually say so and to refer the Bill back to the National Assembly.
Is it possible that our President is so busy that he has not had the chance to apply his mind to this issue? Given the fact that the local government elections took place recently and new municipal council governments have been formed, the President must surely have been aware of the need to sign the Bill into law as soon as possible to ensure that new councils are bound by the provisions of the Bill.
Either the President is extremely tardy in fulfilling his constitutional obligations diligently and without delay to consider a Bill and then to sign it or to send it back to Parliament on the basis that it is unconstitutional, or he is undermining the Constitution. Either way, the present situation is untenable.
The President may, of course, form the opinion that aspects of the Bill are unconstitutional and may then refer the Bill back to the National Assembly. In theory one could argue that the Bill infringes on the right of everyone to take part in the activities of a political party (guaranteed by section 19 of the Bill of Rights), or the right to choose their occupation (guaranteed by section 22 of the Bill of Rights), but I am pretty sure that such limitations will be found to be justifiable in terms of the limitation clause.
However, if the President and his legal advisers believe that the limitation clause will not save the provisions of the Bill, he can refer it back to the National Assembly. Why this has not been done is unclear. What is clear is that something must be done – and fast.BACK TO TOP