The first meeting of the National Assembly after an election has the functions of swearing in members and then electing the president from among its number.

The first meeting of the National Assembly after an election has the functions of swearing in members and then electing the president from among its number. The 400 elected parliamentarians have the task of finding a head of state and head of the national executive and they do so by majority vote in a meeting presided over by the Chief Justice or a judge designated by him.

This year the proceedings were considerably enlivened by the objection to the candidacy of Jacob Zuma for president. The Official Opposition lodged an objection. Democratic Alliance federal chairman, James Selfe, motivated the objection on the basis that it would be irrational to accept the nomination so made because of the track record of Zuma. This was especially because of his propensity to act in ways that are inconsistent with the office of president. This office requires of the incumbent that she or he should be faithful to the Republic and obedient to the Constitution. The oath of office speaks of the solemn duty to “obey, respect and uphold the law … with honour and dignity”.

Notwithstanding the rule that only a member of the National Assembly can become our president, there are vast and obvious differences between the role and functions of those who grace the benches of the legislature and the person who leads the executive branch of government, chooses a cabinet and generally performs the functions of president. A different and separate branch of government at national level is led by the president. The duties and functions are many and varied. Important officials are appointed, bills are signed into law or referred back to the National Assembly or to the Constitutional Court by our president, commissions of inquiry are appointed, referenda are called, offenders are pardoned or reprieved and honours are conferred by the president. It is the president who appoints the cabinet and chairs it. The executive authority of the country is vested in the president.

In these constitutionally prescribed circumstances an objection to the candidacy of a person chosen by a particular political party as its candidate is a matter of some moment in legal terms. The main reason for requiring that the Chief Justice preside at the election of the president is presumably to ensure that the process goes off smoothly and in accordance with the rule of law.

The law requires of parliamentary caucuses that they have due regard to the doctrine of legality when choosing their nominees. This is an element of the rule of law: it requires that decision-making be conducted in a manner that is rational. If a decision is made that is not in accordance with these precepts it is invalid for its inconsistency with the Constitution.

The DA objection to the Zuma candidacy expressly invoked the irrationality of choosing him, of all ANC parliamentarians, to be the candidate of the ANC for president. The Constitutional Court has already expressed itself on the need for rationality in this type of decision making. It did so when the appointment of Menzi Simelane as National Director of Public Prosecutions was successfully impugned shortly after President Zuma appointed him almost five years ago. The court found that this appointment was irrational because there was such a poor fit between the known track record of Simelane and the requirements of his office.

The objection to the Zuma candidacy had to be ruled on in a manner that is consistent with the Bill of Rights. The right to just administrative action is couched in terms that insist upon procedural fairness, lawfulness and reasonableness. Written reasons for adverse administrative action are required by law and laws that promote efficient administrative action must be put in place to give effect to these rights.

The objection of the DA was summarily and orally dismissed by the Chief Justice. He took the somewhat facile view that anyone entitled to be a member of the National Assembly is also entitled to be our president and that the time for objections was over before the DA objected. It is not known whether he has given written reasons as required by section 33 (2) of the Bill of Rights. The DA is certainly entitled to them. If it is unimpressed by the reasons given, it is entitled to apply for a judicial review of the decision to dismiss its objection under section 33 (3) (a) of the Bill of Rights.

It is difficult to square the requirements for eligibility to be a member of the legislature with the requirements to lead the executive branch of government. The two are really quite different. A back-bencher can enjoy relative anonymity in the house; the president is required to be head of state and to lead the executive at national level. These roles are like chalk and cheese.

Whether Jacob Zuma is too conflicted and too compromised to be a rationally selected candidate to lead the country as its president is essentially a question of fact. It is not clear, from the reports of what went down during the objection process, whether any attention of any kind was given to the track record of Zuma in weighing and deliberating upon the objection. It seems that the Chief Justice did not regard it as necessary to do so because of his view that eligibility for the legislature can be equated with eligibility to lead the executive and be head of state. It is respectfully suggested that these features of the process, if correctly summarised from reports, are somewhat unfortunate.

The track record and various known propensities of Jacob Zuma suggest to the rational and objective observer that there is much to be deliberated concerning his character and his past. His Teflon-like ability to prevent anyone getting to grips with the 783 unanswered charges of corruption arising from his relationship with his convicted former “financial adviser” is legendary. The prosecutors feel they have a good case, but it was abandoned in circumstances that are unlikely to withstand proper judicial scrutiny on review, if one is ever allowed to proceed to the point where its merits are considered. By adroit technical point taking over five years Zuma has avoided this. He has been accused anew of fraud, theft and corruption arising from the Nkandla debacle. He is under investigation in the “Zumaville” saga and many of his appointments (beside that of Simelane) have been both questioned and questionable, reversed by legal processes and the subject matter of adverse findings by the Public Protector. His relationships, both social and business, give rise to more serious questions that go to probity and integrity. His own version of what happened in the alleged rape of an old comrade’s daughter by him has led to the permanent attachment of a showerhead to his head in Zapiro cartoons. He has Guptagate, he has children conceived out of wed-lock, he has a nephew whose business activities have attracted much adverse comment. And so it goes, on and on.

Like every other person accused of criminality, Zuma is entitled to the presumption of innocence. He is also entitled to a fair trial. The problem is that he is so conflicted and so compromised by his baggage that he is actually incapable of performing the functions of president in a manner that accords with the obligations that the Constitution places on all presidents, those that require that the president “must uphold, defend and respect the Constitution as the supreme law of the Republic” as the provisions of section 83 (b) put it. These are meant to be done “diligently and without delay” according to section 237. The “Stalingrad strategy” used by Zuma’s defence team is open to a lay litigant, it is not the role of a president to duck and dive in legal matters.

It is open to the DA to ask the Chief Justice for reasons for his decision to dismiss the objection and, if so advised, to take the dismissal of their objection on review. It might spare the nation a multiplicity of court challenges and bring much needed clarity to the matter. A direct approach to the Constitutional Court may be indicated. No functioning constitutional democracy can afford a conflicted, compromised and possibly criminal head of state.

Paul Hoffman SC
26 May,2014.