Quote of the week

Although judicial proceedings will generally be bound by the requirements of natural justice to a greater degree than will hearings before administrative tribunals, judicial decision-makers, by virtue of their positions, have nonetheless been granted considerable deference by appellate courts inquiring into the apprehension of bias. This is because judges ‘are assumed to be [people] of conscience and intellectual discipline, capable of judging a particular controversy fairly on the basis of its own circumstances’: The presumption of impartiality carries considerable weight, for as Blackstone opined at p. 361 in Commentaries on the Laws of England III . . . ‘[t]he law will not suppose possibility of bias in a judge, who is already sworn to administer impartial justice, and whose authority greatly depends upon that presumption and idea’. Thus, reviewing courts have been hesitant to make a finding of bias or to perceive a reasonable apprehension of bias on the part of a judge, in the absence of convincing evidence to that effect.

L'Heureux-Dube and McLachlin JJ
Livesey v The New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288
9 April 2019

Why there is no legal duty on ANC candidates to withdraw from election lists if instructed to do so

In previous democratic elections in South Africa, voters took little notice of who appeared on political party election lists. When the governing African National Congress (ANC) therefore decided to include many individuals of questionable character on its election lists for the 2019 election, the party probably did not foresee the resulting outcry. Now its National Executive Committee (NEC) has instructed its “Integrity Commission” to review the lists. But is this merely a public relations exercise, or can individuals be prevented from taking up their seats in the National Assembly (NA)?

In February 2017 former Eskom Chief Executive, Brian Molefe, was sworn in as a member of the NA after he was nominated to fill a vacancy on the North West province to national electoral list. At the time it was alleged that Molefe, who later claimed that he had resigned and retired from Eskom at the same time, was parachuted into the NA so that former President Jacob Zuma could appoint him as Minister of Finance.

Molefe was never appointed Finance Minister, and after a few months in the NA he quietly resigned from parliament before making his disastrous attempt to return to Eskom. The Molefe case illustrates that it is not very difficult for a political party to deploy one of its members to the NA – even where that member does not appear on any of the party’s electoral lists.

The process can easily be “manipulated” if the party is patient; if at least one of its MPs is willing to vacate her seat (perhaps in exchange for an ambassadorship or another position); and if some party members remaining on an electoral list are sufficiently disciplined to follow an instruction from party leaders to withdraw from that list.

However, it may become far more difficult to shuffle MPs in and out of the NA (or to get candidates to withdraw from election lists) when a political party is divided and when party members (perhaps representing one of the strong factions in the party) refuse to follow an instruction to withdraw from a finalised electoral list. Similarly, while a political party may ultimately prevail, it will take some time and may result in harmful publicity for the political party before the party will be able to remove an MP from the NA in the event that MP refuses an instruction to resign from the NA.

Although the applicable legal rules are different, such a situation may give rise to a toxic and highly damaging fight between the MPs and their party similar to what happened in the fight between Patricia De Lille and her fellow Democratic Alliance (DA) leaders, when the DA wanted to remove De Lille as mayor of Cape Town.

To understand how individuals on political party lists get to be nominated to become members of the NA (or to fill vacancies that occur in the NA,) and how individual not on the list at the time of the election could nevertheless get to the top of a list and into the NA, one needs to look at the provisions of Schedule 1A of the Electoral Act.

Before an election for the NA, each party is required to submit lists with the names of its nominees in the order in which they should be nominated to the NA. The higher up you are on a party’s election list, the more likely you are to be nominated as an MP. This means the more votes your party receives in the election, the more likely you are to become an MP. Put differently, if you are listed at number 100 on the Black First Land First, African Content Movement, or African Transformation Movement election list to the NA, you have a better chance of becoming Beyonce’s boyfriend or girlfriend than you have of becoming an MP.

Parties have a choice to submit only province to national election lists (one for each province) or to submit one national to national list (with 200 names) and nine province to national lists (with the combined number of 200 names). When there is a vacancy in the NA, the candidate at the top of the particular list from which the departing MP was nominated to the NA, will be sworn in as an MP. So, if an ANC MP from the North West province to national list resigns, the ANC candidate at the top of the North West to national list will be sworn in as an MP.

Item 16 of schedule 1A of the Electoral Act makes clear that no party can replace anyone on their electoral lists from the time the lists are submitted before the national election until after votes have been counted and those individuals elected for the party have been sworn in as MPs. Item 17 of the schedule confirms this by stating:

No lists of candidates of a party for any legislature may be supplemented prior to the designation of representatives in terms of item 16.

This means that each ANC member sufficiently high up on one of its election lists for the NA will normally be sworn in as a member of the NA – regardless of what the Integrity Commission may rule. However, individuals on the list are permitted to withdraw from the list. This will usually happen when the party instructs the member to withdraw and he or she obeys the instruction.

If a candidate refuses to withdraw from the party list despite an instruction from his or her party to do so, he or she will become an MP serving in the NA on behalf of their party. In the short term there is not much the party would be able to do prevent the individual from being sworn in as an MP.

Of course, if the ANC “Integrity Commission” decides that some of the most tainted candidates on the ANC election lists should be instructed to withdraw from the party’s candidates lists, one would expect that the candidates would subject themselves to party discipline and would withdraw.

But if a sizeable number of candidates are instructed to withdraw from the lists and if they form part of an influential faction of the party and they believe they have support within the party, it is not a foregone conclusion that they would obey the instruction. In any event, they have no legal duty to obey the party’s instruction to withdraw from the list. Their failure to obey the instruction may, however, expose them to disciplinary action from the party.

A similar (but not identical) thing happened when the DA leadership instructed Patricia de Lille to resign as mayor of Cape Town and De Lille refused to do so. De Lille had some support (largely from members of her former party the Independent Democrats) within the DA caucus in Cape Town city council and she decided to cause as much damage to her party as she could. This had catastrophic consequence for the image of the DA among many of its traditional; voters.

This does not mean that ANC members who may be fingered by the “Integrity Commission” and refuse to withdraw from the ANC candidate’s lists or as ANC MPs (if the instruction to resign comes after the votes have been counted), will not ultimately lose the fight against their party.

Just as the fight between De Lille and the DA was always going to end with her losing her position as mayor, so ANC MPs who refuse to obey instructions from the ANC NEC or the “Integrity Commission” is likely to lead to disciplinary action against them unless, their allies inside the party can prevent this from happening. Whether questionable candidates on the ANC list are eventually removed from their position as MPs may therefore depend to some extent on the internal dynamics of the party. If they are expelled from the party (but only then) they would automatically lose their seats in the NA.

However, it must be clear that implicated ANC members on the electoral lists who decide to cling on to their positions may cause some damage to their party and to President Cyril Ramaphosa. I have no idea whether there would be any appetite among them to pull a Patricia de Lille on their party, but they are more likely to do so if they get support from party leaders clustered around the person of another implicated individual called Ace Magashule.

Whatever happens, the arguments about the ANC’s party lists may not be over. This is because schedule 1A of the Electoral Act allows political parties to supplement their lists. First, after the election and after MPs have been designated to become members of the NA, parties may supplement their lists with an equal number of names (which must be added to the bottom of the lists) to fill up the vacancies left by withdrawals or for reasons not related to the allocation of MPs from the lists. One more such supplementation is permitted (to the end of the list) in the first year after the election.

However, a bigger fight may ensue when parties review their lists in terms of item 21 of schedule 1A of the Electoral Act. This item allows a party to review its undepleted lists annually in the following manner:

(a) all vacancies may be supplemented;

(b) no more than 25 per cent of candidates may be replaced; and

(c) the fixed order of lists may be changed.

This means that party lists may be completely revamped once each year. If there is a power struggle within a political party, the annual shuffling of the list could be very important. It is unlikely to get to this, but if the tainted MPs refuse to resign and they all eventually lose their seats by being expelled from the party, they will be replaced by the candidates at the top of the various election lists. The person or body within the party in charge of reviewing the election lists therefore in effect has the power to decide who is on top of the lists and therefore who will replace the sitting MPs who resigns or who loses their seat because they are expelled from the party.

At the time of writing it is not at all clear how the ANC will deal with the backlash against its election lists. If the party takes action, it is also not clear whether there will be any resistance from within the party to such action, and whether individuals instructed to withdraw from the list or to resign from the NA will do so.

The only certainty is that nothing is certain.

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