PRESIDENTIAL POWERS IN SOUTH AFRICA – MORE QUESTIONS THAN ANSWERS

Abstract

This note attempts to analyse the essence of presidential powers in South Africa. These powers are in essence found in sections 83−85 of the Constitution, which relate to “The President”, “Powers and functions of President” and “Executive authority of the Republic” respectively. After being in operation for close to two-and-a-half decades, questions still remain as to the precise meaning of the Constitution’s reference to the President as “head of state”, “head of the national executive” and being vested with “executive authority”. The existence of such questions, it is submitted, should be of some concern. Since the role of the President is critical in ensuring effective executive government, is it not imperative that, by this time, there should be a consensus as to the meaning of the terms “head of state”, “head of the national executive” and “executive authority”? The role of the President can be extremely politically demanding. Executive aggrandisement must be averted. Because our system of executive government is relatively unexplored given that the Constitution only dates from 1996, it needs to be developed in a truly democratic context with a keen sense of constitutionalism. This implies that the executive must be “unable to employ the strong arm tactics that an autocratic executive is by its very nature able to do”.
The dilemma facing the South African President as head of state and head of the national executive and being vested with executive authority (sections 83, 84 and 85 of the Constitution) is similar to that faced by Abraham Lincoln on 4 July 1861 in his historic address to the United States Congress after the outbreak of the Civil War. Lincoln posed this question: “Must a government, of necessity, be too strong for the liberties of its own people, or too weak to maintain its own existence?”.
In discussing the terms “head of state” and “head of the national executive”, the terms as they feature in the Constitution are referred to; the terms as interpreted and applied in practice are analysed and lastly the myriad questions raised by the terms are highlighted. It will emerge that when it comes to analysing these terms, there appear to be more questions than answers. It is submitted that these unanswered questions are not consonant with good governance and can only result in constant litigation.