On his Blog, Constitutionally Speaking (3 June 2024, https://constitutionallyspeaking.co.za/), Pierre de Vos argues that “a political party cannot sabotage the election of the President by refusing to participate in the election of President by the National Assembly”. He writes, “After the final declaration of the election results…all eyes will now turn to the first sitting of the National assembly which must take place…no more than 14 days after the election result”.
De Vos correctly says that a candidate that is elected President should obtain more than 50% of the votes cast, which is not necessarily 50% of the National Assembly. He then concludes that “if a political party boycotts the first sitting of the NA, or MPs of that party refuse to take up their seats, or if its MPs abstain from voting or spoil their votes, it will reduce the number of votes required to win an absolute majority. This means that a political party cannot sabotage the election of the President by refusing to participate in the election of the President by the National Assembly”. This is not correct.
Purpose of Section 46(1)
De Vos is wrong to simply limit the purpose of Section 46(1) to the determination of the size of the National Assembly. Section 46(1) of the Constitution states that “the National Assembly consists of no less than 350 and no more than 400 women and men elected as members”. De Vos states that this section of the Constitution is irrelevant to the election of the President as it refers to the size of the National Assembly, and not its quorum. However, what he fails to see is that Section 46(1) is not simply about the size. The operative word in Section 46(1) is “consists”—which refers not simply to size but also to composition. In addition, this section is meant to establish the minimum requirement for the legitimacy of the National Assembly.
Composition of a National Assembly
To demonstrate that Section 46(1) refers to composition, the Constitution states that “women and men” should constitute the National Assembly, which means that if only women or men were elected, what would be constituted would not be a legitimate National Assembly. Secondly, it prescribes that these “women and men” should at least be 350 but not more than 400. It would not be constitutional for any number of elected women and men outside the 350—400 range to constitute themselves into a National Assembly. This range therefore refers to the sufficiency of the composition and it is not simply about size. Any number of members less than 350 would imply that the members are not sufficiently composed to constitute a legitimate National Assembly. By sufficiency I mean the minimum requirement for a National Assembly to be considered a legitimate outcome of the electoral process.
It is therefore incorrect to argue that the National Assembly exists regardless of how elected members of political parties constitute themselves—that the constitution of the National Assembly as prescribed by Section 46(1) is irrelevant to all the clauses that follow. These elected members must constitute themselves in a manner as prescribed by the Constitution to be regarded as a legitimate National Assembly. If Section 46(1) is simply about size and therefore irrelevant, de Vos needs to specify where in the Constitution other than Section 46(1), is the prescription of how to constitute a National Assembly located.
De Vos is also incorrect to state that “The Assembly has already been constituted through the election”. As I have shown, an election alone is not adequate to constitute a National Assembly—the case in point being an election of only women or men. What the election does is to choose among the citizens women and men in sufficient composition, who then decide to constitute themselves into a National Assembly by sitting. If their composition violates Section 46(1), then they cannot be regarded as a National Assembly. Section 46(1) therefore prescribes how those elected as members should constitute themselves into a National Assembly.
The rationale for a minimum requirement of 350 members in the National Assembly
The statement by de Vos that, “The Assembly has already been constituted through the election”, is wrong in another sense. Suppose the electoral process runs its course but then its outcome is contested. Section 46(1) says that such contestation would be material if at least 50 elected representatives refuse to participate in constituting the National Assembly. In other words, if at least 50 elected representatives are of the view that the electoral process is irregular and refuse to participate, those representatives represent the will of at least 12.5% of the voters. If this happens, Section 46(1) says that the elected representatives would not have sufficient legitimacy to constitute a National Assembly.
Interestingly, nowhere in his post does de Vos raise this issue of legitimacy. His post leaves indeterminate the legitimacy of the electoral process and the legitimacy of the National Assembly.
Section 46(1) is therefore not simply about size as de Vos claims, it is about the determination of the minimum requirement for the legitimacy of the electoral process and the legitimacy of the National Assembly. What this also means is that the Independent Electoral Commission (IEC) has no authority to unilaterally declare the elections free and fair. At least 87.5% of the elected representatives should concur that the election process has been free and fair before the IEC issues such a declaration. Such concurrence occurs through the political parties in which the elected representatives are organized. The Chief Justice would therefore be wrong to proceed with the process of swearing in the elected representatives as members of the National Assembly.
Suppose the IEC unilaterally declares the elections free and fair without the concurrence of some of the political parties, as is the case with the 2024 elections. Suppose that political parties that concur account for just 30% of the elected representatives. The Constitution says that such a process would not be sufficiently legitimate because 70% of the voters do not concur. The minimum of at least 87.5% of the voters concurring, through their elected representatives agreeing to constitute a National Assembly, is the minimum condition for the legitimacy of the entire process. This is why the elections process alone is not sufficient to constitute the National Assembly.
Therefore, if at least 8 members of the MKP decide to be sworn in, the National Assembly will be duly constituted in line with the Constitution. Then the thresholds for decision making such as 50% plus 1, would apply. What this means is that if the MKP sticks to its guns and reject the election results, a new National Assembly cannot be constituted, and a legitimate President cannot be elected. Since the MKP has rejected the election results, it needs to go down the road of testing Section 46(1) of the Constitution in the courts and thereby help us unravel how else a legitimate National Assembly is constituted.
What about Section 46(2)
One of the radio stations regularly broadcasts a voice of someone, presumably a lawyer, who also says Section 46(2) empowers Parliament to determine the size of the National Assembly, as if to contrast it with Section 46(1). However, Section 46(2) states, “An Act of Parliament must provide a formula for determining the number of members of the National Assembly”.
Section 46(1) sets the minimum and maximum limits of how many members should constitute a legitimate National Assembly. It does not state the precise number.
Section 46(2) says that Parliament (which combines the presumably old National Assembly, and the old National Council of Provinces), has to provide a formula to determine the precise number of members of the new National Assembly. It must however be emphasized that, in so doing, the formula cannot produce a number that lies outside the limits set out in Section 46(1).
Conclusion
The bottom line is that the IEC has to satisfy the MKP that the elections process has been free and fair. If this fails then there will have to be a re-vote. Even if the courts find that the allegations of the MKP have no basis, they do not have authority to grant the other elected representatives an order to constitute a National Assembly because such a National Assembly will not be sufficiently legitimate, in line with the Constitution. This is a stalemate that only the MKP can resolve.