The seventh administration’s constitutional process has been delayed as signatories to the Statement of Intent (SOI) have struggled to find each other. These talks are being led by the SOI, and the 10 parties who signed are legally bound by it.
Since taking office, all executive power has been in the hands of President Cyril Ramaphosa, but South Africans are eagerly awaiting the announcement of his cabinet and therefore executive branch.
The president still has constitutional powers, but to what extent does the letter of intent dictate how the president can carry out his constitutional duties?
The letter of intent is a seven-page document outlining how the parties that make up the Government of National Unity (GNU) will work together, and President Cyril Ramaphosa is expected to use it as a guide in some capacity as he decides who to govern a week into his term.
But just two weeks after the document was signed, rifts are reportedly emerging between the parties that were meant to form an inclusive government, with the GNU's two largest parties reportedly at odds over the composition of the executive as talks continue.
A leaked letter from the DA said the party wanted the deputy president's post, 11 ministerial posts and its own deputy minister and director-general of strategic portfolios.
Article 17 of the letter of intent signed by both parties recognises the prerogative of the president to appoint members of the executive, but states that such appointments should be made in consultation with the leadership of each party.
ANC secretary-general Fikile Mbalula said: “In terms of political parties, we will consult and engage with the president on his powers. Any government that the president forms will reflect the principle of a government of national unity. So we will leave the details to the president because there is a principle of powers that belong to the president and that must not be diluted or undermined.”
According to legal analyst Leitumetsi Phiri, this is the correct interpretation of Article 17. Phiri said the presidential prerogative in making executive appointments is guaranteed by the constitution.
According to the constitution, the president can appoint, empower, and dismiss the vice president and ministers.
Phiri said while the president is expected to be consulted, he is not a party to the expression of intent and therefore can invoke privilege.
Since the Prime Minister has a duty to consult with other parties regarding the composition of the Cabinet and ensure that the views of each party are broadly reflected in the Cabinet, the statement of intent makes it clear that the Prime Minister's powers are not infringed and that he or she can make the decision or decisions within the scope of his or her powers.
So, in terms of the ongoing discussions with the DA, it is up to the President to take into account whatever their wishes are, provided, of course, that he makes it clear that the President still has prerogatives and must act within the bounds of his constitutional prerogatives.
Article 19(3) of the SOI is also interpreted differently by the two parties: according to this article, sufficient agreement exists if GNU parties holding 60% of the seats in the National Assembly agree.
DA federal chairperson Helen Zille argues this means the ANC needs to get the buy-in of a second party to reach a 60% deal.
“We will have at least 30% of the seats in the Government of National Unity. Not 20 or 30! The ANC will have at least 60% of the GNU, but we must take into account all the parties affiliated to the GNU. Without a Democratic Alliance the ANC will not reach the 60% of seats in Parliament held by the GNU parties.”
Gillet added: “It remains to be seen how this will work, given the ideological differences between the two parties. The pushback against the agreement has come from the largest party, as right-wing parties are seen as having a lot of power in the agreement.”
Phiri added that some parties may be excluded from the GNU consensus-based decision-making, in which case they will be given an opportunity to express their views and consultations will take place, but all 10 parties will be bound by the document and its contents.
“SOIs are indeed binding on each of the parties in the GNU. Each party, by signing a particular SOI, openly expresses its intention to be bound by its contents and content, which imposes obligations on the parties and sets out the rights they have vis-à-vis political parties. These rights and obligations arise in areas of cooperation where the parties have agreed, for example, that all interactions will be conducted in good faith. That means that at least when these parties interact in a government context, all interactions must be conducted in good faith. They also agree on the fundamental priorities for the government, how to set the policy agenda and how to work through the government.”
There is no constitutional timeframe that dictates the president must adhere to when forming his cabinet, and he has yet to make an announcement, with recent disagreements among some political parties raising expectations about who will be in the seventh administration.