PBL 210 Exam: The President and National Executive Authority (PDF)

PBL 210: EXAM THEME 10: THE PRESIDENT AND THE NATIONAL EXECUTIVE AUTHORITY ________________________________________  Government authority divided into 3:  Legislative  Executive  Judicial  Executive authority: defined as the power to implement + execute rules of law, to develop + implement pol...

PBL 210: EXAM THEME 10: THE PRESIDENT AND THE NATIONAL EXECUTIVE AUTHORITY ________________________________________  Government authority divided into 3:  Legislative  Executive  Judicial  Executive authority: defined as the power to implement + execute rules of law, to develop + implement policies + also to prepare + initiate new legislative provisions.  According to the Constitution, executive authority of RSA is vested in Parliament (president)  Main source of executive authority is the Constitution in conjunction with other statutes.  Masetlha v President of the Republic of South Africa and Another:  Court stated that both the Constitution and the general legislative scheme give the President a special power to appoint functionaries and that the exercise of such power will only be reviewable on narrow grounds.  Was stated that it would not be appropriate to constrain such executive power with the requirements of procedural fairness in the interests of national security. - CHRISTELLE SAMONS PBL 210: EXAM   However, presidential decisions are not beyond the reach of judicial review. A decision to dismiss a functionary, for example must conform to the principle of legality and as such, may not be exercised in bad faith, arbitrarily or irrationally. NATIONAL EXECUTIVE BODIES:  Various government bodies exercise executive authority.  These bodies at national level include:  President  Ministers  Cabinet  Other public officials.  Legal rules are executed within specific government department.  Departments are then regulated by legislation.  Public administration = activities of all organs of state + all admin.  Executive + government = political functionaries.  Public service = all officials within public admin that execute policies of government.  PRESIDENT OF RSA:  President of RSA = highest executive body.  President of SA = both head of state + head of government.  Constitution refers to President as follows:  True presidential system = USA (head of state and head of government are integrated into one), THUS, integrated system.  ELECTION OF PRESIDENT:  Each system has its own procedure to elect Head of State + Head of Government.  S 86 = election of president.  Schedule 3 = process for election.  SA president is not directly elected like in USA + France. - CHRISTELLE SAMONS PBL 210: EXAM  SA President = indirectly elected by SA voters, through voting for political party.  NA is then tasked with electing President on first Parliamentary sitting after electing political party.  President must vacate his seat in NA when assuming office.  ELECTION PROCEDURES FOR PRESIDENT: - CHRISTELLE SAMONS PBL 210: EXAM - CHRISTELLE SAMONS PBL 210: EXAM  QUALIFICATIONS TO BE PRESIDENT:  All systems have qualifications: in USA, president must be natural born citizen + over 35 years of age.  SA has indirect requirements:  President must be elected from NA. President must therefore comply with requirements of member of NA. - CHRISTELLE SAMONS PBL 210: EXAM  Apart from provisions above, there are no other qualifications.  ASSUMPTION OF OFFICE:  SA President assumes office by swearing / affirming faithfulness to RSA + obedience to Constitution.  S 87 has to be read with Schedule 2  S 87 has to be read along with Schedule 2: - CHRISTELLE SAMONS PBL 210: EXAM  TERM OF OFFICE:  S 88 of Constitution provides for term of office.  Vacancy occurs when President resigns / dies / removed / next person elected assumes office.  “Term” = 5 years, same as term served on NA (S 49(1))  According to S 50 of Constitution, a term can be shorter than 5 years.  Implication of S 50 of Constitution:  If there is a vacancy in office of President, NA has to elect new President within 30 days, otherwise NA will dissolve.  If NA dissolves ito S 50, S 49(2) applies.  Acting President must then, by proclamation, call + set dates for election within 90 days after dissolution of NA. - CHRISTELLE SAMONS PBL 210: EXAM  REMOVAL OF PRESIDENT:  Vacancy in President’s office due to S 89 of Constitution  S 89 aims for removal of President as punishment for certain conduct.  Is directed at President personally and not other members of executive.       Focus on S 89(1)(a)-(c) Removal of President = impeachment President resigns = motion of no confidence. President has to be removed by majority of 2/3 vote of NA. Get President to resign > remove president. If impeachment started and President then resigns, they can still act against him, as he forfeits the benefits. - CHRISTELLE SAMONS PBL 210: EXAM  S 102(2) of Constitution deal with motion of no confidence  Aim of motion of no confidence is directed at stripping President alone OR President + other members of Cabinet from their executive positions when he/she no longer has political support in National legislature.  Majority vote (50% + 1) of NA is needed for motion of no confidence.  REMUNERATION:  President’s salary + benefits = not protected in Constitution but is established by Act of Parliament.  S 219 deals with salary of public officials. - CHRISTELLE SAMONS PBL 210: EXAM POWERS + FUNCTIONS OF PRESIDENT:  All heads of state have specific powers, provided for in Constitution, legislation + common law.  S 84(1): President has powers entrusted by Constitution (has implied power to preform functions.  STATUTORY POWERS:  Constitution is not only source of President’s statutory power.  Other legislation is also important:  Eg. National Defence Act gives president specific powers.  Hugo v President of the Republic of South Africa:  Powers of president has to be exercise in accordance with Constitution and rule of law.  Court emphasised 3 branches of government (executive, legislative and judicial)  Powers of President under S 82(1) of Interim Constitution are expressed in broad terms + can be exercised without Cabinet concurrence.  President’s power has limits + must act in good faith. - CHRISTELLE SAMONS PBL 210: EXAM  President of Republic of South Africa v South African Rugby Football Union: President’s power ito S 84(2), CC held:     President is responsible for exercising powers under S 84(2) of Constitution. May seek advice but is responsible for decision. Powers exercised ito S 84(2) are regulated by Constitution through SoP, BoR + other provisions in Constitution. President = head of state + head of government. S 84(2) are powers enjoyed by head of state. Exercise of S 84(2) power does not constitute admin action, but narrow constitutional responsibility. (a) Powers of President as head of national executive  President has certain powers as head of national executive.  President has power to appoint + dismiss.  Masetlha v President of the RSA:  Power to appoint = executive act and is not administrative act.  President must act with advice of Cabinet.  President is constitutionally + legally obliged to act on advice from judges there to help with Judicial Service Commission (JSC) (b) Powers of President not as head of national executive  President doesn’t have to make decisions with Cabinet.  Has capacity to make own decisions as head of state.  President is then individually + collectively accountable to Parliament + must comply with all requirements to exercise such powers.  President may consult other functionaries on some matters but is not bound by their recommendations.  Other powers of President must be exercised “on recommendation of” functionaries. President is the bound to act on recommendations.  ACTING + DEPUTY HEADS OF GOVERNMENT:  No state should be without head of government, therefore there should always be someone who can act as head of state.  Deputy head of government is appointed by President from among members of NA.  Deputy President’s main function = to assist President in execution of government functions + to fulfil powers + functions assigned to him by President.  President may appoint + dismiss deputy president.  S 90 in Constitution provides for appointment of deputy president - CHRISTELLE SAMONS PBL 210: EXAM CABINET:  Cabinet = body of people in whom the final responsibility for proper execution of executive authority is vested (at national level)  Cabinet usually consists out of Head of state + his advisors. - CHRISTELLE SAMONS PBL 210: EXAM      COMPOSITION OF CABINET: S 91 of the Constitution provides for the composition of Cabinet. Cabinet consists of President, Deputy President and Ministers. President appoints Deputy President and Ministers. Cabinet does not have a specified number of members.  FUNCTIONS OF CABINET:  S 85 of the Constitution provides for the functions of Cabinet.  The Constitution does not provide procedures for Cabinet to follow when making decisions.  Cabinet follows their own procedures, and it is based on consensus.  EXECUTIVE ACCOUNTABILITY AND RESPONSIBILITY:  It is important to determine who is finally responsible for executive authority.  According to S 85 of the Constitution, executive authority is vested in the President and therefore the President is finally responsible.  Accountability and responsibility of executive authority is outlined in S 92 of the Constitution.  Members of the executive authority is individually and collectively responsible.  S 92(1)-(3) provides for individual accountability. MINISTERS AND DEPUTY MINISTERS:     APPOINTMENT AND DISMISSAL OF MINISTERS: Ministers are appointed and dismissed by Head of State (President) S 91(2) provides for the appointment and dismissal of Ministers. President may act as Head of State and is not required to act with Cabinet.  QUALIFICATIONS OF MINISTERS: - CHRISTELLE SAMONS PBL 210: EXAM  Ministers form part of the NA and therefore have the same qualifications as members of NA, as set out in S 47 of the Constitution.  A maximum of 2 Ministers from the outside are allowed to be appointed, but do not have to meet requirements/qualifications, as provided for in S 91(3)(c)  Ministers and Deputy Ministers:           Ministers are appointed to administer specific state departments. Minister with portfolio = Minister appointed to administer state department. Minister without portfolio = Minister appointed to preform functions other than administration of state department. Portfolio = all functions + powers of specific departments. Ministers perform dual function: (take part in daily admin of gov) 1) They head state departments. 2) They take part in activities of national executive. Ministers are still part of NA: a) Meaning they are still part of legislature. b) Also provides co-ordination between executive authority and legislative authority. All Ministers are part of Cabinet. All state departments are represented in Cabinet. President can change the composition of Cabinet. S 97 and 98 provides for transfer of administrative powers by President.  CONDUCT OF MINISTERS:  Members of national executive must set example for other members of executive authority in lower spheres of government.  Must comply with requirements in Constitution + legislation and act in accordance with specific codes of ethics.  S 96 of Constitution and Executive Members Ethics Act provides for Conduct of Cabinet + Ministers. - CHRISTELLE SAMONS PBL 210: EXAM  ASSIGNMENT OF EXECUTIVE FUNCTIONS:  NATIONAL SUPERVISION OVER PROVINCIAL ADMINISTRATIONS:  First Certification Judgment:  S 100 of the Constitution was found to contemplate that national executive will either a) put a province on terms to carry out obligations or b) assume such responsibilities itself.  Court held that the purpose of S 100 is to enable national government to step in when provincial government is unable to act.  It does not take away the provinces’ right to carry out their assigned functions, so S 100 does not interfere with legitimate autonomy. - CHRISTELLE SAMONS PBL 210: EXAM  EXECUTIVE DECISIONS: - CHRISTELLE SAMONS