SA President and National Executive Authority (NEA) PDF

THE SA PRESIDENT AND THE NATIONAL EXECUTIVE AUTHORITY (NEA) Identify the three branches of government authority in the RSA. ▪ Executive (Cabinet) ▪ The Legislature (Parliament) ▪ The Judiciary (Courts of Law) Define and analyse the extent of the National Executive Authority (NEA). (See section...

THE SA PRESIDENT AND THE NATIONAL EXECUTIVE AUTHORITY (NEA) Identify the three branches of government authority in the RSA. ▪ Executive (Cabinet) ▪ The Legislature (Parliament) ▪ The Judiciary (Courts of Law) Define and analyse the extent of the National Executive Authority (NEA). (See section 85.) ▪ Bodies who exercise executive authority at the national level include: o The President o The Ministers o Cabinet o Other public servants or official ▪ The national executive is the branch of national government that is responsible for exercising day-to-day governmental authority. It consists of the President, the Deputy President and the other members of the Cabinet ▪ National executive authority is the power to execute the rules of law at national level throughout the whole territory of the state ▪ National executive authority is based on a system of parliamentary government Notes by Sasha ©. I assume no responsibility or liability for any errors or omissions in the content of these notes. Please do not illegally share. In which organ of state does national executive authority finally vests? ▪ The executive authority of the Republic is vested in the President. Which organ(s) of state exercises national executive authority? ▪ Bodies who exercise executive authority at the national level include: o The President o The Ministers o Cabinet o Other public servants or official Explain and evaluate the President’s duties as set out in section 83 of the Constitution. ▪ The President is the Head of State and head of the national executive; ▪ He/She must uphold, defend and respect the Constitution as the supreme law of the Republic; and ▪ Promote the unity of the nation and that which will advance the Republic Briefly explain and evaluate the election of the President as required by the Constitution. (See section 86.) ▪ In a monarchical system of government – head of state is determined through inheritance or descent ▪ In republican or presidential system – there are different methods to elect the bearer of the office of head of state o The head of government can be elected by parliament (by both or one house) or be appointed by the head of state Notes by Sasha ©. I assume no responsibility or liability for any errors or omissions in the content of these notes. Please do not illegally share. ▪ In SA the Constitution prescribed the procedure for electing the President ▪ The SA President isn’t directly elected by the SA electorate o He is indirectly elected by the SA voters who have directly voted for the proportional appointment of members in the NA o The NA is tasked with electing the extra-parliamentary president o Note: although the President is extra-parliamentary the national executive authority is parliamentary o Most members of the national executive are appointed from amongst the members of the NA o The President is elected by the members of the NA but he must vacate his seat in the NA on assuming office o An extra-parliamentary presidency is thus created ▪ Section 86 of the Constitution deals with the election of the President ▪ The purpose of such system is that the incumbent can be free (to a degree) from the turbulent and unpredictable nature of SA party politics ▪ The President remains a member of the majority political party ▪ The President is however somewhat detached in his capacity as President from the formal and rigid party political directives of the ruling party – the President can thus fulfil a unifying and mediating role in society ▪ The requirements and specifications of section 86 must be read in conjunction with Schedule 3 of the Constitution ▪ If an election has been held and no party has obtained an outright majority – the parties will enter into negotiations in order to form a government of more than one party o This is called coalition government o The decision as to which party’s leader will be elected as the new President is an important aspect that needs to be agreed upon Notes by Sasha ©. I assume no responsibility or liability for any errors or omissions in the content of these notes. Please do not illegally share. o Example: in the Western Cape Province (after the elections in 1999) where the Democratic Party and the New National Party formed a coalition government Explain the term – Coalition government. ▪ A coalition government is a form of government in which political parties cooperate to form a government. Identify and explain the constitutional qualifications/disqualifications required for a person to be eligible to be elected as President. (See section 47.) ▪ The President must be elected from amongst the members of the NA The Constitution doesn’t directly lay down the qualifications for the office of president ▪ It is done indirectly ▪ The qualifications for membership of the NA are specifically explained and given that the President is elected from among the members it follows that he must comply with such qualifications ▪ The qualifications are set out in section 47 of the Constitution ▪ Section 81(3) of the Interim Constitution provided that the President is prohibited from holding any other public office (this was omitted from the Constitution) Investigate the oath/affirmation that the President must take before he/she can assume office. (See section 87.) ▪ When elected President, a person ceases to be a member of the National Assembly and, within five days, must assume office by swearing or affirming faithfulness to the Republic and obedience to the Constitution, in accordance with Schedule 2 Notes by Sasha ©. I assume no responsibility or liability for any errors or omissions in the content of these notes. Please do not illegally share. Reconsider the term of office of the SA President. (See section 88.) ▪ Heads of state and heads of government have limited terms of office ▪ Section 88 of Constitution deals with the term of office ▪ The normal term of office of the President is the same as that of Parliament which is five years under normal circumstances ▪ After every national election the NA elects a President ▪ The term of the NA is five years but such term can be dissolved before the expiry of the five-year term ▪ The SA President’s term can be shortened if a vacancy happens o Example: if he were to resign, die or be removed from office ▪ The President may resign voluntarily but must resign after a motion of no confidence has been carried against him Discuss the grounds and procedure on which the SA President can be removed from office. (See section 89.) ▪ The Constitution makes provision for the removal of the President in certain circumstances ▪ Section 89 of the Constitution deals with the removal of the President ▪ Being removed from the office of President holds serious implications for that person if he is removed from office in terms of section 89(1)(a) or (b) ▪ Removal from office must be distinguished from motions of no confidence ▪ The aim of the removal procedure is to punish a president for certain conduct he has committed ▪ The aim of a motion of no confidence is directed at forcing or stripping the President alone or the President with other members of his Cabinet Notes by Sasha ©. I assume no responsibility or liability for any errors or omissions in the content of these notes. Please do not illegally share. from their executive positions when he no longer has the political support of the legislature ▪ In removal procedures the action is directed at the president personally and not at other members of the executive ▪ A removal process can be equated to a quasi-judicial process ▪ A motion of no confidence is a political procedure ▪ Removal would require a higher standard of judicial review ▪ What would happen if a president resigned from office after removal (impeachment) procedures had been instituted? It is submitted that such procedures should still be followed and if such conviction is obtained then the person should forfeit the benefits mentioned in section 89 Can the remuneration of the SA President be reduced by Parliament? ▪ Remuneration o The President’s salary, allowance and benefits are not directly protected in the Constitution o They are determine din the same way as the salaries or allowances of certain other persons holding public office (within a framework established in an Act of Parliament) o Parliament may pass such an Act and the executive may only implement it after considering any recommendation of an independent commission that is also established I terms of national legislation o These provisions are contained in the Constitution o Parliament can’t reduce or increase the salary of the President by a resolution or by adopting an ordinary Act of Parliament o Section 219 of the Constitution deals with the remuneration of persons holding public office Notes by Sasha ©. I assume no responsibility or liability for any errors or omissions in the content of these notes. Please do not illegally share. Identify and analyse the statutory powers of the SA President as set out in section 84 of the Constitution. ▪ Statutory powers o Other laws also confers powers on the President o When investigating all the President’s statutory powers it is important to look at other pieces of national legislation which contains specific powers that he may exercise o Section 84(2) of the Constitution includes powers which have now become statutory powers and are subject to judicial control o When one is investigating the powers and functions of the President, must distinguished between those powers which he exercises as head of state and those he exercise as head of national executive Distinguish between the powers of the SA President in his/her capacity as Head of the National Executive and as Head of State. ‘ ▪ Powers of the President exercised as head of national executive o The Constitution entrusts the President with certain powers and functions in his capacity as head of the national executive o All powers and functions exercised in this capacity must be taken together with the other members of Cabinet o Most of the constitutional powers and functions of the President in this capacity are concerned with the making of appointments o The explicit power to appoint includes the implicit power to dismiss Notes by Sasha ©. I assume no responsibility or liability for any errors or omissions in the content of these notes. Please do not illegally share. o Masetlha v President of the RSA: court indicated that the action of the President to appoint is an executive act and not an administrative act o The President must act in a rational manner o The South Africa Acts of 1909 and 1961 provided that the head of state had to act with the advice and on the advice of his Cabinet ➢ The head of state was obliged to follow the advice obtained and was in accordance with the applicable Westminster convention ➢ With the combination of the two offices (head of state and head of government) into one office the Westminster convention has no further relevance ➢ The 1983 Constitution and the Interim Constitution of 1993 referred to the expression ‘in consultation with’ which meant that the functionary who had to be consulted had to concur with the final decision ➢ If the functionary was a body of persons such occurrence had to comply with the specific decision-making process of that body o In terms of section 174 of the Constitution the President must appoint judges on the advice of the Judicial Service Commission o The President is constitutionally and legally obliged to act on such advice o The President must act ‘after consultation’ with other functionaries o He must consult such a functionary before a decision is taken o The actual degree and extent of the consultation will depend on the prevailing political circumstances and leadership style of the President Notes by Sasha ©. I assume no responsibility or liability for any errors or omissions in the content of these notes. Please do not illegally share. ➢ This type of consultation is regarded as a weak form of consultation ➢ Requires good faith and serious consideration of other views ➢ The President isn’t legally bound by the advice ▪ Powers of the President exercised not as head of the national executive o The Constitution doesn’t require the President to take all decisions together with other members of Cabinet o The President has the authority to take certain decisions in his capacity as head of state o The President acts on his own accord and exercises such like any other minister to whom powers have been entrusted in terms of legislation o The President is individually and collectively accountable to Parliament for his powers ➢ He must ensure that all the requirements laid down for the exercise of the powers have been complied with ➢ Sometimes the President has a very limited discretion on how and when some powers may be exercised • Example: in terms of section 50 of the Constitution the President must dissolve the NA if such a decision has been taken o The Constitution uses other standard expressions to describe certain requirements o These might be powers of the President as head of state or as head of national executive: ➢ The President can only exercise some powers ‘after consulting’ other functionaries • a. Means that the President must consult the other functionary, but that he is not bound by its recommendation Notes by Sasha ©. I assume no responsibility or liability for any errors or omissions in the content of these notes. Please do not illegally share. • b. This does not mean that the President, after consultation, has a non-consequential discretion in taking the decision or making an appointment since such a decision could have various political consequences ➢ Other powers of the President must be exercised ‘on the recommendation of’ or ‘on the advice of’ or ‘as approved, proposed or nominated by’ or ‘as called for by’ other institutions or functionaries • a. In these cases the President is bound to act as advised or according to the recommendations he has received Explain the meaning of the phrases: together with and in consultation with. ▪ In the Constitution the expression ‘together with’ the other member of Cabinet is used which has the same meaning as ‘in consultation with’ ▪ Most of these decisions are taken at Cabinet meetings but the Constitution contains no formal directives on how Cabinet must arrive at a final decision ▪ The requirements of ‘together with’ and ‘in consultation with’ mean that the final decision-maker must exercise his power in conjunction with the other applicable functionaries and not unilaterally o This is defined as a strong form of consultation ▪ The expression ‘on the advice of’ has a similar meaning Explain whether the South African President still has certain common law powers. ▪ All or most of the common law powers from the Westminster system have been incorporated either in the Constitution or in other legislation Notes by Sasha ©. I assume no responsibility or liability for any errors or omissions in the content of these notes. Please do not illegally share. ▪ The only common law powers which may still exist are those in relation to ‘acts of state’ ▪ Acts of state are executive actions primarily concerned with foreign relations such as the recognition of other states or the acquisition of foreign territory ▪ In terms of item 2 of Schedule 6 of the Constitution the President retains all previous common law powers provides that’s such powers aren’t in contradiction with the Constitution or repealed Does the Constitution provide for an acting President? (See section 90.) ▪ No state should ever be without a head of government ▪ There should always be someone who can act as head of state ▪ Section 90 of the Constitution deals with the provisions relating to acting President ▪ Most constitutions provide for a deputy head of government who must assist the head of government with his daily responsibilities ▪ The Constitution provides for a Deputy President to assist the President ▪ The Deputy President is appointed by the President from among the members of the NA ▪ The Deputy President’s main function is to assist the President in the execution of the functions of government and fulfil the powers and functions assigned to him by the President ▪ The President may dismiss the Deputy President ▪ The Constitution doesn’t prescribe circumstances wonder which the Deputy President can be dismissed – however the political position of the President is an important consideration ▪ The Deputy President is subject to the constitutional provisions of accountability and the code of conduct of members of Cabinet Notes by Sasha ©. I assume no responsibility or liability for any errors or omissions in the content of these notes. Please do not illegally share. Explain and evaluate the composition of the national Cabinet. (See section 91.) ▪ Section 91 of the Constitution deals with the Cabinet ▪ The Cabinet has no specified number of members and the President can appoint as many ministers as he deems necessary ▪ The office of the Deputy President is sometimes referred to as a de facto prime minister and has been argued that it appears as if SA is developing a bicephalous executive Who appoints and dismisses members of Cabinet? ▪ The SA Cabinet consists of the President, a Deputy President and the Ministers appointed by the President From which body are members of Cabinet mostly appointed? ▪ There is a body of people in whom the final responsibility for the proper execution of executive authority is vested ▪ At national level it is the Cabinet or the executive council and it consists of the head of the government and the various ministers Discuss the different functions of the national Cabinet. ▪ The specific functions of the cabinet of a national government are not usually set out in the constitution or statutory laws of the state ▪ Cabinets don’t usually possess any statutory or common law powers ▪ Section 85 of the Constitution described specific functions of Cabinet as part of the national executive authority: o Implementing national legislation o Developing and implementing national policy o Coordinating state departments Notes by Sasha ©. I assume no responsibility or liability for any errors or omissions in the content of these notes. Please do not illegally share. o Preparing and initiating legislation o Performing other executive functions provided for in the Constitution or other national legislation ▪ The Constitution doesn’t contain provisions on the procedures that Cabinet must follow in order to take decisions ▪ The manner in which Cabinet will or must take decisions is decided by Cabinet itself and usually based on the consensus of the majority Explain the appointment, dismissal, qualifications and powers of ministers and deputy ministers. ▪ Appointment and dismissal of ministers o They are formally appointed by the ceremonial head of state or the executive president o In terms of the Constitution an adapted version of the Westminster system is followed o Ministers are appointed by the President who assigns their functions and powers to them and who can dismiss them o When the President is appointing Ministers he is acting as head of state and not in conjunction with other members of Cabinet o The SA President has a free discretion in appointing members ▪ Qualifications of ministers o Generally members of Parliament and must comply with the qualifications for members of Parliament o The Constitution provides that all Ministers with the exception of a maximum of two must be appointed form among the members of the NA and must comply with the membership qualifications of that body o No other requirements or qualifications are required by the Constitution o No further qualifications are required for the two outside Ministers Notes by Sasha ©. I assume no responsibility or liability for any errors or omissions in the content of these notes. Please do not illegally share. ▪ Powers and functions of ministers o Ministers possess all the powers assigned to them by the President and as is permitted in terms of the law o All powers and functions must be exercised in terms of the Constitution, other legislation or even the common law o In SA Ministers have no common law powers and all their powers and functions are exercised and performed in terms of the Constitution or other legislation o Apart from acting in accordance with the Constitution and the law Ministers must also act in accordance with a code of ethics as prescribed by national legislation What is a cabinet re-shuffling? ▪ A cabinet reshuffle or shuffle occurs when a head of government rotates or changes the composition of ministers in their cabinet, or when the Head of State changes the head of government and a number of ministers. Explain and critically evaluate the requirements regarding the code of ethics that the members of the national executive must adhere to. (See section 96.) ▪ Members of the national executive must set an example for other members of executive authority in lower spheres of government ▪ To enhance this role members must comply with the requirements of the Constitution and other legislation act in accordance with a specific code of ethics ▪ Section 96 of the Constitution deals with the conduct of Cabinet members and Deputy Ministers Notes by Sasha ©. I assume no responsibility or liability for any errors or omissions in the content of these notes. Please do not illegally share. Discuss the requirements of executive decisions. (See section 101.) ▪ Set out in section 101 ▪ The Constitution sets out specific requirements with which executive decisions must comply ▪ Similar to laws or decisions of the law-makers in a state, all proclamations, regulations and other instruments of subordinate legislation which have been issued by the executive authority must be accessible to the general public ▪ The Constitution does not dictate or prescribe how such access is to be ensured o It is left to national legislation to specify the manner in which such instruments or documents are to be approved and published o The employment of the Westminster practice to allow parliamentary questions has also proved to be an effective mechanism to obtain important information from the executive and thereby ensure that it is accountable ▪ The mention of counter-signing in section 101(2) confirms that the acts of the executive are performed as recommended by the Ministers and that they have participated in the taking of the decision o Confirms their collective or individual accountability for such acts or decisions ▪ The South African President is an executive president and is collectively accountable with the other members of his Cabinet for all national executive decisions or acts and thus some writers are of the opinion that the counter-signing of all decisions is not always required Notes by Sasha ©. I assume no responsibility or liability for any errors or omissions in the content of these notes. Please do not illegally share. Explain and analyse the accountability of members of Cabinet. Is the President also accountable? (See section 92.) ▪ The Deputy President and Ministers are responsible for the powers and functions of the executive assigned to them by the President. ▪ Members of the Cabinet are accountable collectively and individually to Parliament for the exercise of their powers and the performance of their functions. ▪ Members of the Cabinet must— o act in accordance with the Constitution; and o provide Parliament with full and regular reports concerning matters under their control. Explain and discuss the procedure of a motion of no confidence. (See section 102.) ▪ Set out in section 102 of the Constitution ▪ Mazibuko NO v Sisulu and Others NNO o It is a constitutional right to move for a motion of no confidence in the President o The Constitution envisages that this motion could be brought not only by a majority party but also by a minority party which sought to garner support for the motion from members across the floor of the house o This right of an elected representative to bring a motion of no confidence in the President captures the animating spirit of SA’s new democracy Notes by Sasha ©. I assume no responsibility or liability for any errors or omissions in the content of these notes. Please do not illegally share. o A motion of no confidence in the President contains an element of inherent urgency as it raises matters of profound national interest and importance o While the judiciary was entitled to direct Parliament to operate within constitutional boundaries and refraining from subverting the expressly formulated idea of a motion of no confidence, the courts could not trespass into the legislative domain by dictating to Parliament when and how it should arrange its order of business o The manner in which the right as envisaged in section 102 of the Constitution would be vindicated was up to Parliament to decide and not the courts o The Court concluded that as the National Assembly Rules presently provided, the motion could not be debated unless it was supported by the majority party o This position was incompatible with the Constitution, in that the majority could subvert the right of the minority to have such a debate o The lacuna created by the absence of a rule allowing a minority party to vindicate the right to debate a motion of no confidence was a matter for the CC to address Explain the concept of “state capture” and discuss its occurrence and possible impact on the SA constitutional scheme. ▪ State capture is a type of systemic political corruption in which private interests significantly influence a state's decision-making processes to their own advantage. Notes by Sasha ©. I assume no responsibility or liability for any errors or omissions in the content of these notes. Please do not illegally share.