As seductive as certain perspectives of international law may appear to those who disagree with the outcome of the interpretative exercise conducted by this Court in the contempt judgment, sight must not be lost of the proper place of international law, especially in respect of an application for rescission. The approach that my Brother adopts may be apposite in the context of an appeal, where a court is enjoined to consider whether the court a quo erred in its interpretation of the law. Although it should be clear by now, I shall repeat it once more: this is not an appeal, for this Court’s orders are not appealable. I am deeply concerned that seeking to rely on articles of the ICCPR as a basis for rescission constitutes nothing more than sophistry.
The President of the country is elected by the members of the National Assembly and this means that the leader of the party that can gain the support of more than 50% of the members of the National Assembly will become President. It also means that if the President loses the support of the majority of members of the National Assembly, he can be ousted.
Article 102(2) of the Constitution states:
If the National Assembly, by a vote supported by a majority of its members, passes a motion of no confidence in the President, the President and the other members of the Cabinet and any Deputy Ministers must resign.
The ANC has a large majority in the National Assembly and its members are under strict party discipline. The party can therefore easily recall President Mbeki after the election of a new ANC President and can elect the new ANC President as President of the country. That would solve the “two centres of power” problem, Mangcu suggests mischievously.
The new President could then serve the rest of Mbeki’s term and then begin to serve his two terms in office. This is because section 88(2) of the Constitution makes clear that serving only part of one term would not constitute a “term” for the purposes of the rule restricting a President to serving two terms.
A similar thing happened to PW Botha after he relinquished the leadership of the National Party to FW de Klerk, and De Klerk and Pik Botha then turned around and ousted him from the State Presidency. But the ANC is not the National Party and the apartheid state is not our constitutional democracy. If Mbeki is ousted, it would therefore be a truly seismic event for the ANC and for the country. Respect for and loyalty towards leaders is deeply ingrained into the ANC’s official culture (although not always respected behind the scenes).
Such a scenario would therefore only be possible if President Mbeki overplays his hand to such a degree over the coming months, that party leaders feel they have no choice but to oust him or if information comes to light that he has used “dirty tricks” or had inappropriately misused the levers of powers against one of his opponents.
Is this a possible scenario? Even cynical me thinks it a bit far fetched. But then who would have thought that the Health Minister would be accused of being a thief and a drunk by one of the largest newspapers in the country?