Who might be the next president of SA and who is eligible?

Paul Hoffman says the case against Zuma's candidacy in election is far from clear cut

The first order of business in the National Assembly, when it meets for the first time after the May elections, is to elect the next president of South Africa.

If the pollsters are to be given any credence, then there will be no single party that will be able to command the votes of 50% plus one of its members. Until that vote is taken Cyril Ramaphosa, whose “new dawn” and long-promised “renewal” of the ANC has proved chimeric, will continue in office. The first sitting must take place not more than 14 days after the National Assembly election result has been declared. The Chief Justice, or another judge designated by him, presides over the election of the president.

If there is a vacancy in the presidency for whatever reason, the Chief Justice is empowered under the Constitution to call an election to fill the vacancy. The election, in which only members of the National Assembly participate, will be of a man or woman elected from among its members by secret ballot.

It is accordingly necessary to be elected to the National Assembly to be eligible for presidential office in SA.

Should the ANC do badly at the polls, it is foreseeable that Ramaphosa may resign and retire from politics. He reportedly contemplated doing so after the Phala Phala scandal broke. Failure in the form of loss of support in the forthcoming elections would amplify his lack of appetite for high office.

As there is likely to be no single party able to command the necessary simple majority, some frantic horse trading may be expected once the official results are declared. As similar circumstances may obtain in various provinces, the horse trading will be replicated at provincial level and will depend on the strength of the various bigger parties in each province. There will be rushed efforts to meet the constitutional deadlines applicable to the elections of leaders.

Under Schedule 3 to the Constitution the Chief Justice must make rules prescribing, inter alia, the manner in which the voting for the new president is to be conducted. This power may be sufficiently widely construed to enable the Chief Justice, if requested to do so, to hold the voting in abeyance pending the finalisation of the negotiations that may be needed to achieve sufficient consensus to arrive at an electable candidate. This happy outcome may flow from wider coalition talks. There is even the unlikely, but possible, eventuality that a government of national unity may emerge from the negotiations.

At this stage, and much can change between now and the election date, it seems that the bigger parties are the ANC (around 40%), the DA (around 20%) the EFF (around 10%) and the MKP (also around 10%). Pollsters are careful to say they are not in the business of predicting, but none of them poll that any other party will have a percentage of the votes that reaches double figures. There is nevertheless likely to be around 20% of the members of the National Assembly who will represent the smaller parties and who might play a critical “king-making” role in the negotiations that will precede sufficient consensus on who should take office as president after each member present has cast his or her secret vote.

The ANC leads the tripartite alliance which has been in office in national government since 1994. The other significant members of the alliance are the SA Communist Party, which chooses not to field candidates of its own in its own name, and COSATU which is not a political party. They are both given a quota of public representatives by the ANC.

The DA is a member of the Multi-party Charter with several smaller parties. This grouping has yet to make its presidential candidate known. Much will depend on how each component party does in the election. And on the outcome of the likely coalition negotiations.

Neither the EFF nor the MKP are in alliance or coalition with any other party at national level, not yet anyway. The EFF’s track record in coalitions in local government is that of a somewhat grubby spoiler. According to the leader of the opposition, the price of an EFF coalition with the ANC is that the right hand man of Julius Malema, Floyd “VBS” Shivambu must become minister of finance. This implies that Malema has his eye on the deputy presidency. Whether the ANC is prepared to stomach these demands remains to be seen.

A grand coalition of the left, those parties which support the notion of a “national democratic revolution”, (being the ANC, EFF and MKP,) could come close to the magical two thirds majority which will enable them to tinker in revolutionary fashion with those provisions of the Constitution that do not require the 75% majority prescribed in Section 74(1) of the Constitution.

Citizens concerned about possible interference with the rights guaranteed to them in the Bill of Rights will be aware that a two thirds majority is needed to amend the Bill of Rights. Those citizens unfamiliar with the hegemonic strivings of the national democratic revolution should consult the book written by Anthea Jeffery of the SAIRR, “Countdown to Socialism.” Jeffery explains that much of what is wrong with SA today is attributable to the revolutionary zeal of the ANC.

Assuming that Ramaphosa does not quit, he will probably be the candidate of the ANC and its alliance partners; Julius Malema is the likely candidate for the EFF, being its leader and it is not yet known who will be nominated by the MKP. There is much speculation as to who will be nominated by the ANC should Ramaphosa quit. Professor Anthony Butler has a favourite. Samson Gwede Mantashe, chairman of the ANC, had he not been fingered as a Bosasa beneficiary by the Zondo Commission, might have been a front-runner. The truth is that there is no obvious successor to Ramaphosa in the current ranks of the blighted ANC leadership.

It needs to be noted that having served two terms as president of SA, Jacob Zuma falls foul of Section 88(2) of the Constitution because no person may hold office as President for more than two terms. This is a salutary pro-multi-party democracy provision which guards against the “big man” syndrome which has wrought so much damage to freedom loving people elsewhere in Africa, and indeed the world. Having served twice, Zuma is disqualified from being a future president of SA.

The IEC believes that Zuma also falls foul of the eligibility provisions that limit who may stand for election in the National Assembly. This belief is based on an interpretation of Section 47(1) of the Constitution which may or may not be correct. The ultimate interpretation is likely to be finally determined by the Constitutional Court, knowing Zuma as we do.

The section renders ineligible all who have been convicted of an offence and sentenced to more than 12 months imprisonment without the option of a fine. Zuma was convicted by the Constitutional Court of the offence of contempt of its order that he present himself to the Zondo Commission of Inquiry. However, this offence was not the subject matter of an ordinary prosecution of the kind arguably contemplated by the section. It speaks of the situation that obtains when appeals are pending in the following terms:

But no one may be regarded as having been sentenced until an appeal against the conviction or sentence has been determined…

This poses a difficulty with the interpretation of the section in that it clearly does not contemplate the situation in which Zuma finds himself – convicted and sentenced by the highest court in the land with no right of appeal of any kind. It may be possible to “read in” to the quoted wording at the end of the clause 

…in those cases in which an appeal or appeals are available

The circumstances in which Zuma finds himself may mean that Zuma should not be regarded as disqualified or ineligible, or it may mean that the appeal proviso simply does not apply to him. There are arguments both ways.

The right of appeal is an important safeguard against any possible miscarriages of justice. Had Zuma been found guilty of contempt of court in the magistrates’ court he could have appealed to the High Court, and if unsuccessful there, to the Supreme Court of Appeal and even the Constitutional Court. He does not have these rights as a person convicted and sentenced by our highest court – no appeal is available against its findings. An attempt at having the findings rescinded failed.

The way the IEC is apparently interpreting the words first quoted above is that they simply do not apply to Zuma because there is no appeal available to him and the Constitutional Court finding should accordingly be regarded as the last word in the matter.

The rights to vote and to be voted for as a candidate for the National Assembly have been hard won in SA and they are guaranteed to all under the provisions of section 19 of the Bill of Rights. Generally speaking Zuma has a right to stand for public office and, if elected, to hold office. The limitations on his eligibility to stand for office must be construed in a way that accords that right the necessary respect which the state is obliged to show it under Section 7(2) of the Constitution.

His conviction by the Constitutional Court is obviously not the kind of conviction the wording of section 47 contemplates. Whether reading in words to the effect that once the highest court has so convicted the words first quoted above do not apply to Zuma, as it is so that no appeal lies, is a task for the court or courts that are called upon to interpret the wording of section 47 and its applicability to the somewhat unusual circumstances of Zuma’s case. In the interpretation of the wording of section 47 the court will incline to uphold his right to stand for election.

Many other points have been raised in arguments concerning Zuma’s eligibility to stand. The correct answer to the point raised above is likely to be the decisive one. It has not yet been raised in argument, mystifyingly so; perhaps the point is being saved for the appeals likely no matter who wins in the Electoral Court which is due to deliver its judgment on 9 April.

Those voters who are comfortable with a revolutionary future will make their choices between the ANC, EFF and MKP; those who prefer constitutional democracy under the rule of law with a transformative Constitution to protect them firmly in place will not choose to vote for any of the three revolutionary parties. A revolutionary coalition capable of cobbling together a two thirds majority in parliament can, and probably will, do untold harm to the Constitution currently in place in SA.

The Constitution may not be perfect, but upholding it is preferable to the pursuit of the revolutionary ideology of the ANC, EFF and MKP. Fortunately, the leadership of the three parties have issues with each other that may render a coalition between them unattainable. Re-absorbing splinters is fraught with difficulties.

Paul Hoffman SC is a director of Accountability Now