Reasons why the GNU might end up as an exhibit in Zagreb’s Museum of Broken Relationships

If the agreement between the ANC and the DA requiring ‘sufficient consensus’ for GNU decisions holds, it would make it impossible for the ANC to implement new policies or table new legislation without DA approval. This suggests that for as long as the agreement holds, any radical policy changes will remain unlikely.

The fantastic Museum of Broken Relationships in Zagreb, which I visited a few days ago, displays a collection of objects connected with all aspects of break-ups (a toaster, an old bicycle, a prayer mat, a pair of scuffed trainers, a target practice sheet — all 10 shots with an AK47 a bulls-eye — a small canister with some of the ashes of a late father), many of which were donated by friends of the artist who created the work, with many others later sent in by the public from all over the world.

Not on display when I visited the museum was the oil painting of a politician who failed to deliver, sent in by a disillusioned voter.

What object, I wonder, would a voter — or party leader whose party has agreed to be part of the so called government of national unity (GNU) — send in if it all ends in a spectacular break-up? A scuffed copy of clause 18 and 19 of the framework agreement, signed by Helen Zille and Fikile Mbalula a few hours before the election of the president, would surely be a contender.

Clause 18 states that the GNU “shall take decisions in accordance with the established practice of consensus”, but if that is not possible “the principle of sufficient consensus shall apply”, while clause 19 makes clear that “sufficient consensus” would require agreement from parties to the coalition “representing 60% of seats in the National Assembly”.

Practically, the latter provision means that agreement from both the ANC and the DA would be required for the coalition government to make any decision.

What is not clear is to what kinds of decisions these clauses will apply. Put differently, how much discretion will Cabinet ministers from different political parties in the coalition have to manage their departments? To what extent do these clauses limit the discretion of the President — as head of state and head of the executive — to take decisions he is constitutionally authorised to take? Can the government function effectively if both the DA and the ANC have to agree before any meaningful decision can be taken?

Much will depend on the exact meaning of several provisions in the Constitution dealing with collective Cabinet responsibility which — for good reasons — have not yet been considered in any detail by the Constitutional Court.

For example, section 92(1) of the Constitution makes clear that the President assigns powers and functions to the deputy president and ministers, but section 92(2) then states that “members of the Cabinet are accountable collectively and individually to Parliament for the exercise of their powers and the performance of their functions” (my emphasis).

As Christina Murray and Richard Stacey point out in their chapter on “The President and the National Executive” in Constitutional Law of South Africa, the idea that members of Cabinet must act together and share responsibility for their actions is often referred to as “Cabinet solidarity” or collective Cabinet responsibility.

Traditionally this has meant that Cabinet ministers are free to disagree with each other on a specific policy until Cabinet has taken a final decision on the matter, after which they are all collectively responsible for the decision and are obliged to defend (or at least not publicly criticise) the decision taken.

But it is not clear to what extent this is constitutionally required. The multi-party coalition government will have to come to some kind of agreement on what kinds of decisions Cabinet ministers would be obliged to take responsibility for, and what kinds they would be free to criticise.

As clause 18 and 19 make clear that collective government decisions would require agreement from both the ANC and the DA, these two parties would in any event be responsible for the collective decisions of the government and should have no problem defending them in public.

But it is far from clear which decisions would require approval from the entire Cabinet. While section 85(1) of the Constitution states that the executive authority of the Republic is vested in the President (thus suggesting that the buck stops with him), this is somewhat qualified by section 85(2) which states that the “President exercises the executive authority, together with the other members of the Cabinet” (my emphasis).

This raises an important but up to now (in the South African context at least) obscure constitutional question: to what extent are individual Cabinet ministers free to make decisions affecting their departments — when would they have to obtain approval from the Cabinet and when not?

Not all decisions would have to be brought to the Cabinet for approval. My understanding is that President Cyril Ramaphosa’s Cabinet in the previous administration had largely operated as a loose confederation of independent fiefdoms, tempered by Ramaphosa’s tendency to centralise some of the most pivotal policy issues in the Presidency. Murray and Stacey suggest that the President “is at liberty to decide what matters should be discussed by Cabinet as a whole, what can be dealt with in Cabinet committees and what matters need not come to Cabinet at all”.

They reference an older version of the South African Manual on Executive Acts of the President which says that the requirement that the president must act “together with the Cabinet” requires that all “matters of substance – whether ministerial or Presidential should be brought to Cabinet”. (I have been unable to find an updated version of the Manual on the internet. Any reader with access to the updated version, could you please send it to me.)

Cabinet ministers, so the manual suggests, enjoy some discretion to decide which matters are routine and which not. But the Cabinet itself could also decide that certain matters must be agreed on collectively (and would thus require sufficient consensus).

However, the Manual does state that “both the President and individual Ministers are duty-bound to take to the Cabinet issues of policy, significant decisions, decisions with financial consequences outside a department’s approved budget and any matter the Cabinet has referred to it”. This would mean at the very least that any draft legislation would have to be approved by the Cabinet before it could be tabled in the legislature. It would also mean that any changes in government policy would have to be approved by the entire Cabinet.

If the agreement between the ANC and the DA requiring “sufficient consensus” for GNU decisions holds, it would make it impossible for the ANC to implement new policies or table new legislation without DA approval.

But it would also be impossible for the DA to implement any changes to existing policies or legislation (one thinks of the National Health Insurance Act, for example) without ANC approval. This suggests that for as long as the agreement holds, any radical policy changes will remain unlikely.

But much depends on which types of decisions will require sufficient consensus and which not.

It will not be surprising if conflicts arise between ANC ministers and DA ministers (well, Helen Zille really) about whether a specific issue is one of “substance” requiring Cabinet approval, or merely a routine matter that the relevant minister can deal with on his or her own.

It is, in any event, unclear whether decisions of substance not approved by the Cabinet collectively will be unconstitutional and invalid. I found a High Court judgment, President of the Republic of South Africa v Eisenberg & Associates (Minister of Home AffairsIntervening), where the court set aside regulations made by the Minister of Home Affairs under the Immigration Act in part because it was held that such regulations, involving matters of national policy, were a matter of collective responsibility and thus required Cabinet approval. But it is unclear whether this approach will be endorsed by the Constitutional Court.

Another possible sticking point might be the correct interpretation of section 101(1) of the Constitution which requires that a “decision by the President must be in writing if it is taken in terms of legislation or has legal consequences”, read with section 101(2) which requires that “a written decision by the President must be countersigned by another Cabinet member if that decision concerns a function assigned to that other Cabinet member”.

An example: where the President exercises his power to remit the sentences of certain categories of prisoners, this decision would have to be countersigned by the minister responsible for correctional services. It is not clear whether the relevant minister may refuse to countersign the decision and if he or she does, what the legal effect, if any, of this would be.

I suspect that the purpose of section 101(2) is to ensure that the relevant Cabinet minister remains informed about decisions about his or her department taken by the president, but I have not (yet) found any helpful Constitutional Court judgments on this issue, so who knows?

The formation of a coalition government at the national level raises many other constitutional questions — including about the functioning of Parliament.

But many of these questions (including the ones raised above) are best resolved by the parties participating in the coalition government, not by the courts.

As with most intimate relationships, once you start litigating against the party you are in a relationship with, your relationship has probably already irrevocably broken down. Hopefully, coalition partners will remember this and will refrain from the bad habit of wanting to resolve essentially political disagreements in the courts.

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