Our constitution once we're in coalition country

Koos Malan and Ilze Grobbelaar-du Plessis write on the clauses that will govern the formation of a new govt

The possible end of a dominant majority party

Many people refer fondly to South Africa’s democracy as "our democracy", arguably quite understandably, because the Constitution, after all, provides for general adult suffrage; regular elections for legislative bodies in all spheres of government (and since recently also for independent candidates); public participation in the legislative process; and accountability by government.

However, "our democracy", launched in in 1994, quite predictably soon degenerated into one-party domination, in which the ANC dominated the national political scene, thus also enabling it to impose its ideology of transformationism, also called the national democratic revolution, and to run the South African state into the ground.

This is a consequence of the force of identity in South African politics, according to which the public is strongly inclined to vote according to their racial and cultural group. As a result, the ideological merits of political parties and the quality of governance of the ruling party are evidently not the important factors they ought to be in voter choice, which they should be in a rational democratic system.

"Our democracy" has consequently become a crippled democracy, in which election results, save for the finer details, have been largely predictable.

This has significantly eroded the multi-party nature of the constitutional order. The unpredictability of election results, the risk of the incumbent government losing power, and the accompanying prospect of change of government - which have been considered fundamental characteristics of true multi-party democracy - have been shelved for several decades.

However, especially since the municipal elections of 2021 when the ANC suffered significant setbacks, aided by several splits from the ANC - the latest being the MK Party of Jacob Zuma - there are strong signs that one-party dominance might be on the backfoot.

Opinion polls now show that the ANC may possibly fail to achieve an absolute majority at national level. (“Possibly”, because the latest polls show that the ANC, despite its dismal record, may still be marching on towards 50%) However, if the ANC does in fact fail to achieve an absolute majority, a new era of government formation by coalitions may be imminent.

How will it work - politically and under the Constitution?

Result and first session of the NA

The National Assembly (NA), which was elected in 2019, according to section 49(4) of the Constitution remains competent to function until the day before the election of 29 May 2024.

The Independent Electoral Commission (IEC) must declare the election result according to section 57(2) of the Electoral Act within seven days of the election (except in the special circumstances as described in the section, which we do not deal with here.) If everything goes smoothly, it will therefore finally be on 5 June 2024.

After this, the newly elected NA must meet for its first sitting at a time and place as determined by the Chief Justice, but no later than fourteen days after the declaration of the result. Assuming that the IEC will have declared the result by 5 June, the last date for the first sitting of the NA is therefore 19 June.

Government formation

Since, as is widely expected, the ANC is due to lose its absolute majority, informal discussions are likely already now under way (before the election) with a view towards forming a coalition government. However, there is no legal mandate to that end. Consequently, the formation of coalition governments is a purely political matter.

Once a final result is announced showing that the ANC has missed 50 percent, there will be frantic negotiations to form a coalition government.

However, according to the Constitution, not the conclusion of a coalition agreement, but the election of the President as explained below, is the first step in forming a new government, precisely because the President is vested with the authority to appoint the cabinet, including the Deputy President.

The new President must be elected within 30 days after the vacancy arose on 29 May 2024. If the NA fails to elect the new President within this period the NA must dissolve and a new election held within 90 days.

Precisely for this reason, sufficient agreement on who the President will be, is central to the negotiations on a coalition government.

The final aim of the negotiations, of course, is to ensure that the parties seeking to constitute a coalition government enjoy the majority of the 400 (at least 200 plus one of the total members of the regional and compensatory seats) of the National Assembly and thereby command a majority for the coalition from the moment of the election of the President.

Coalition negotiations and the eventual agreement will evidently also include the filling of cabinet portfolios, apart from resolving ideological and policy issues.

Even though under the Constitution the power of appointing the cabinet is the President’s, he will be bound to implement the coalition agreement. Constitutionally he is not bound by such agreement and may still do as he pleases.

However, reneging on the agreement will spell the demise of the coalition agreement (and government). Coalition partners will withdraw, the President (and his new cabinet) will face a motion of no confidence and lose their positions.

The election of the President

The most important responsibility of the national assembly at its first sitting is the election of the President (as well as of the Speaker and Deputy Speaker.)

If at this stage a coalition agreement has already been reached - and a presidential candidate therefore also been agreed upon by the coalition partners - the question of whom to elect as President is a fait accompli, merely formally sealed by the election procedure in the national assembly.

Nevertheless, a coalition agreement in which the identity of the presidential candidate has been agreed to, is not a constitutional requirement for the election of the national assembly electing the President.

Of course, in such a case, the election of the President by the national assembly will be an unpredictable and tense affair, precipitating a situation that has not yet been experienced over the past thirty years, but as things now stand, could very well be a likely scenario.

The election of the President presided over by the Chief Justice is conducted under section 86 and in accordance with the procedure prescribed in Part A of Schedule 3 of the Constitution.

The President must be an elected member of the national assembly (who once elected, vacates his seat). It is, however, also possible (for political reasons) that the coalition partners may decide to nominate a person outside the national assembly as their presidential candidate. Such a person, however, will first have to assume membership of the national assembly.

If more than one candidate is nominated, votes are caste by secret ballot.

Majority of votes, not necessarily members

The winning candidate is not required to muster the votes of the majority of members of the NA and therefore need not secure the votes of more than 200 of the 400 members. All that is required is commanding an absolute majority of votes, regardless of how many votes were actually caste. (This is evident from Item 6 and 7 of Part A of Schedule 3 of the Constitution).

Absolute majority in the first ballot

If only two candidates are nominated (an ANC candidate and a candidate of the Multiparty Charter) and the ANC candidate gets 210 votes and the Charter candidate 160, the position is simple. The ANC candidate obtained the majority of votes (and although not required, also the support of the majority of members of the national assembly) and is therefore declared the elected President.

Members who abstained (thirty in this case, that is, the difference between the total number of 400 members of the NA and the number of votes of 370 actually caste) are of no consequence.

If the situation turns out somewhat differently and there were once again only candidates from the ANC and Charter parties, and the ANC candidate secured 190 votes and the Charter candidate 175, the ANC candidate would be elected because he received a majority of votes, even though the majority of the members of the NA did not vote for him.

This would typically occur where a coalition agreement has yet to be attained, and the winning candidate still falls short of commanding the support of the majority of national assembly members. Coalition negotiations will therefore have to continue urgently. If unsuccessful, the new President will struggle governing with a minority government. This is the situation in which the President and the cabinet do not enjoy the support of the majority in the national assembly.

Constitutionally, there is nothing preventing this. However, it will be a potentially unstable government. To pass legislation it will have to negotiate with other parties and conclude ad hoc agreements. The President and his cabinet will also be vulnerable to motions of no confidence.

Suppose, however, there are three candidates - from the ANC, the MPC parties and an EFF candidate (evidently also a situation where a coalition agreement has not yet been concluded).

Suppose the ANC candidate receives 190 votes, the MPC candidate 130 and the EFF candidate 50. The ANC candidate obtained an absolute majority, in other words, more votes than the total of the other two candidates, namely 180, which is all that is required by Item 6, namely a majority of votes (not members of the national assembly.)

Thanks to its absolute majority, the ANC candidate has been elected as President. The thirty members who abstained (the difference between the total number of 400 members of the NA and the total number of votes of 370 caste) have once again no effect.

The elected President in this case consequently does not enjoy the support of the majority of members of the NA. In this case, coalition negotiations will also have to follow urgently, and an agreement concluded, thus saving the President the tight spot of trying to govern with a minority government.

In all three of these cases, the President was elected, as he obtained an absolute majority - more votes than his one opponent (where there were only two candidates) or of the total of votes of all his opponents (when there were two or more opponents).

Not an absolute majority on first ballot

However, what happens if none of the candidates obtained an absolute majority in the first ballot?

Item 7 of Part A of Schedule 3 provides for such scenarios. It stipulates that if no candidate obtained an (absolute) majority of votes, the candidate who received the lowest number votes is eliminated and a further vote is taken among the remaining candidates. This procedure must be repeated until one of the candidates secures a majority of votes (an absolute majority).

Then the position would be as described in the following scenarios:

Scenario A

Suppose the ANC candidate receives 190, the Charter candidate 140 and the EFF candidate 60 votes. The total number of votes cast is 390, leaving a balance of 10 members who abstained.

The ANC candidate is not elected because he/she failed to get the majority of votes cast. The total number of votes for the other two candidates were 200, being 10 more than the ANC candidate. (In this scenario it is of course also clear that a coalition agreement for forming a majority government has not (yet) been reached.)

The EFF candidate is now eliminated, which could then precipitate scenarios B or C.

Scenario B

After the EFF candidate is eliminated, the final vote follows, in which the ANC candidate receives 195 votes and the Charter candidate 175.

The ANC candidate (who now received five more votes than in the first vote) was now elected as the President, as he/she received the majority of votes.

It is clear in this scenario that (despite possible efforts) during the period between the two votes a coalition agreement has still not been concluded. Had an agreement been concluded, one of the candidates in the second round would probably have received 50% plus 1.

Scenario C

In this scenario, also following scenario A, a final vote must be taken, after elimination of the EFF candidate.

The Charter candidate now secures 192 votes and the ANC candidate 190. Consequently, the Charter candidate now received more votes than the ANC candidate and is therefore the elected President.

This is so because the Charter candidate has now gained support from outside the support base of the Charter parties.

Although the Charter parties are themselves a collection of parties, at this stage, even after gaining additional votes in the second ballot, it still lacks the numbers to form a majority government. It will therefore have to try to govern as a minority government and seeking to conclude ad hoc agreements with other parties to get legislation passed.

Scenario D

The ANC candidate receives 190 votes, the Charter candidate 140 and the EFF candidate 48.

In this scenario, the ANC candidate was elected President thanks to obtaining a majority (of two) votes above the total of the two other candidates.

However, the ANC will still have to try to conclude a coalition agreement with a view of forming a majority government to avoid an ANC minority government with all the weaknesses associated with it.

After the election of the President - further coalition negotiations

The discussion shows a person can be elected President with a majority of votes, without commanding the support of the majority of members of the NA, namely where a coalition agreement for a majority government has (yet) not been reached.

Should such a situation arise, further urgent negotiations attempting to form a majority coalition will follow. The President's appointment of the Deputy President and members of the cabinet will then be delayed because the decisions on this will depend on what the coalition partners agree to.

If unsuccessful, a minority government with all its accompanying weaknesses will be formed.

Section 102, of the Constitution which regulates motions of no confidence (in the cabinet excluding the President in - 102(1)) or only in the President (section 102(2)), requires the support of a majority of members of the national assembly, that is, at least 50%+1 or 201 members.

These provisions therefore provide a minimum degree of protection for the incumbent government and therefore for a minimum degree of government stability, since the support of a majority of votes, as opposed to a majority of members of the national assembly, is not sufficient to pass a motion of no-confidence.

It is therefore easier to get a new President elected and form a government (with a majority of votes) than toppling it, with a motion of no confidence (with the support of the majority of members of the national assembly).

If the ANC fails in obtaining an outright majority on 29 May, especially when it receives significantly less than 50% support nationally, we are entering largely uncharted territory, which can cause considerable instability.

Professors Malan and Grobbelaar-du Plessis are constitutional jurists from Pretoria.

This article was initially published in Afrikaans on Netwerk 24