Democracy

DECODING DEMOCRACY: THE LEGAL JOURNEY POST-ELECTIONS

Following the declaration of the election results by the Electoral Commission of South Africa (IEC) on Sunday, 2nd June 2024, as per Section 57 of The Electoral Act 73 of 1998, we now turn our attention to the subsequent legal procedures, as envisioned through the stipulations of the Constitution and surrounding legislative frameworks.

According to Section 51(1) of the Constitution, after the results are declared, the Chief Justice must arrange for the first sitting of the National Assembly, which sitting must be held no more than 14 days after said declaration. It is relevant to note that the National Assembly is made up of all pollical parties who had gained seats by the voices of the citizens, calculated through the election results.

Thereafter, and at the first sitting of the National Assembly, Section 86 (1) of the Constitution requires the members of Parliament to elect an individual from the National Assembly as the holder of the Honourable title and office of President of the Republic of South Africa. In essence, the provisions provide that any member of Parliament can be elected to be the country’s next president, notwithstanding which party garnered the highest result from the votes.

The electoral process of electing the President at the sitting of the National Assembly is given effect under Schedule 3, Part A of the Constitution. The procedure runs as follows:

  • The presiding officer of the National Assembly shall call for the nomination of candidates.
  • A prescribed nomination form must be signed by a minimum of 2 members of the National Assembly and the person nominated as such must indicate acceptance of the nomination by signing either the nomination form or any other form of written confirmation.
  • The presiding officer will then call out the nominations, to which no debate is allowed against.
  • In the unlikely event that only one candidate is nominated, such candidate shall be declared as President.
  • In the more likely alternative that more the one candidate is nominated, a vote must be held by the assembly, by means of a secret ballot. The candidate who thus receives majority of the votes shall be declared as the President.
  • However, should a majority not exist, an elimination process shall be endured, whereby the candidate who receives the lowest number of votes shall be eliminated and furthers votes shall taken on the remaining candidates until a candidate receives a majority of the votes and thus declared as President.

The composition and election of the Deputy President and Ministers are then, as per Section 91 (2) of the Constitution, elected by the then appointed President, who shall confer the powers and functions of such offices. Until such elections are made by the President, Section 94 of the Constitution provides for continuation of office and powers of the current standing Deputy President and Ministers.

In the absence of an absolute majority in favour of any political party in the electoral results, we are likely to see the emergence of a new-era, coalition governance structure, the result of which is purely speculative at this juncture.

Should you have any further questions on this topic or any other legal matter please contact our offices on 011 897 1900, 076 777 1920 or info@tuckers.co.za.

 

This Article was contributed by Ahmed Seedat of Tuckers attorneys.