The push for President Cyril Ramaphosa to reshuffle his Cabinet came hot on the heels of his second-term confirmation as ANC boss at the party’s 2022 elective congress at Nasrec.

Speculation rapidly emerged around the possible replacement of his deputy in government — David “DD” Mabuza — according to proclaimed ANC tradition, with Paul Mashatile, who had taken over the ANC deputy presidency.

The pitfall? ANC deputy president Paul Mashatile is not a member of Parliament. And the Constitution, in Section 91(3)(a), says that he has to be to get into the government’s deputy president post.

That necessitates a complex set of moves, from MPs resigning, to open vacancies on the ANC parliamentary benches, to getting publicly elected candidates lists amended in provincial legislatures.

Where in the process is the Ramaphosa ANC & administration?

Various letters have been written to various organisations in the political landscape, as political parties rule the roost in South Africa’s electoral system.

The Gauteng ANC, on the public record, produced such correspondence, with the KwaZulu-Natal ANC going a step further. The province’s premier, Nomusa Dube-Ncube, was effectively told to expect her cooperative governance MEC’s resignation, according to a KZN ANC statement on 30 January, stating “it has discussed and accepted the resignation of Cde Sihle Zikalala. This follows the redeployment to the National Assembly by the ANC Luthuli House…”

Crucially, effective from 31 January, the ANC benches in the National Assembly had two vacancies.

“Parliament confirms the resignations of Mr Tshilidzi Munyai and Mr Mervyn Dirks as members of the National Assembly… The Speaker has wished both well in their future endeavours,” tweeted Parliament spokesperson Moloto Mothapo on Monday.

Both the timing and the names are important, given the annual rejig of public representative candidates lists in terms of Schedule 1A of the Electoral Act.

Dirks’ resignation opens a vacancy on the KwaZulu-Natal to national list that, on public record, seems earmarked for Zikalala. Munyai’s resignation opens a vacancy on the Gauteng list — and that’s how Mashatile will get to Parliament as an MP and be available to be appointed through a Cabinet reshuffle as South Africa’s deputy president.

Party lists reviewed

Regardless of party political missives, the statutory requirement in terms of Schedule 1A of the Electoral Act is for the ANC to submit amended publicly elected candidates lists in the Gauteng and KwaZulu-Natal legislatures.

That’s possible annually on a calendar from the day after MPLs were sworn in following the 2019 elections. Or, as the KwaZulu-Natal legislature secretary Nerusha Naidoo said in her reply to an email query:

“… (P)olitical parties represented in the legislature may therefore review their party lists once annually between 23 May in one year to 22 May the following year.”

Exactly when that “once” would be, remains unanswered. Also unanswered, the same question put to the Gauteng legislature secretary.

A scan of Government Gazettes from May 2022 to now shows no public record of the ANC changing its candidates lists in either Gauteng or KwaZulu-Natal. But then, by law, secretaries to provincial legislatures have up to 10 days from submission of changed lists to publication.

But the glance at the gazette showed the ANC changed its national list in July 2022, as did the DA, which also changed its Gauteng list in May 2022 and Eastern Cape list in August 2022.

The United Democratic Movement changed its Eastern Cape list in February 2022. The EFF amended its Mpumalanga list in April 2022 and in July 2022, that of Gauteng. Also in July 2022, the IFP changed its lists in KwaZulu-Natal.

As Electoral Commission of South Africa (IEC) Electoral Matters Senior Manager Granville Abrahams explains:

“… (W)e hand over the list of elected officials and the lists to the Chief Justice and legislature secretaries. That’s where our responsibilities end in terms of the Act… Schedule 1A of the Electoral Act deals with the administration of lists in the national and provincial legislatures and specifically assigns this task of maintaining the lists to the Secretaries of the legislatures.”

The system 

Everything rests with these lists. Once a year, political parties can move to fix political problems and pickles. Up to a quarter of a candidates list can be changed, and, crucially, also the ranking of candidates as they decide who is on their publicly elected representatives’ list and in what spot.

“A party may review its undepleted lists as supplemented in terms of items 18, 19 and 20, within seven days after the expiry of the period referred to in item 19, and annually thereafter, until the date on which a party has to submit lists of candidates for an ensuing election, in the following manner:

(a) All vacancies may be supplemented;

(b) No more than 25 percent of candidates may be replaced; and

(c) The fixed order of lists may be changed.

It is terrible legalese, but the system is established. And those new, amended lists, according to Section 22 of Schedule 1A of the Electoral Act, are published “by the Secretary to Parliament and the Secretaries of the provincial legislatures within 10 days after the receipt of such lists from the parties concerned”.

Recapping the basics

Given the party political dominance of South Africa’s electoral system, before elections, all contesting parties file their publicly elected candidates lists with the IEC. From those lists, in order of their ranking, the MPs and Members of Provincial Legislatures are sworn in.

Crucial here are the types of candidates’ lists — national to national, and provincial to national for Parliament, and province to province for the nine legislatures.

Almost immediately, the lists come into play as the president and premiers must resign, respectively, from the national and the various provincial legislatures. Vacancies are filled with the next candidate on the respective national and provincial lists, respectively. And the provincial lists come into play to replace those MPLs elected to serve as delegates to the National Council of Provinces.

The annual reranking shake-up comes as an extra; rejigging the provincial to national lists has in the past allowed for key deployments to Parliament.

Candidates list rejigs — a measure of rising political stardom? 

Brian Molefe, Eskom’s CEO during the power utility’s State Capture heydays, is illustrative.

A couple of months after he resigned from Eskom after then Public Protector Thuli Madonsela’s scathing November 2016 State of Capture report, controversy erupted as North West changed its list to make him an MP. Amid speculation that the Jacob Zuma administration had earmarked Molefe for finance minister, Parliament — in a 44-word statement on 17 February — confirmed his nomination.

Molefe was sworn in as an ANC MP later that month, but left by mid-May 2017 without having seen the inside of the finance ministry, over the continued outcry over his stint as parliamentarian.

Read more in Daily Maverick: “Joining Parliament’s Rogues’ Gallery: Brian Molefe, MP”

Similarly controversial was the elevation of Mosebenzi Zwane as an ANC MP on 4 September, two days after the Free State lists were amended, and then as mineral resources minister on 23 September 2015.

Parliament dismissed claims of undue haste and surprise at his appointment. Zwane remains an ANC MP although he stepped aside from chairing the transport committee; he was dropped from Cabinet after Ramaphosa was made President in February 2018 following Zuma’s resignation.

Perhaps least controversial was the move of ANC MP Sifiso Buthelezi to Parliament in April 2016 after amending the KwaZulu-Natal ANC lists. He spent 11 months as a lawmaker before, in early 2017, becoming deputy to then finance minister Malusi Gigaba. After a stint as deputy agriculture minister, he today chairs the Standing Committee on Appropriations.

What next?

The KwaZulu-Natal and Gauteng legislature secretaries must process the ANC’s changed lists to be published within 10 days of receipt.

Formal correspondence must be sent to National Assembly Speaker Nosiviwe Mapisa-Nqakula, so Parliament can arrange the swearing-in of the new MPs — usually a low-key affair in the Speaker’s boardroom.

Traditionally, the House is told of a new member. Parliament also publishes resignations and swearings-in in its record of work, the Announcements, Tablings and Committee Reports.

Once the new ANC MPs are sworn in, impediments are removed for Ramaphosa’s Cabinet reshuffle.

While the focus may be on Mashatile becoming deputy president, three Cabinet vacancies exist, counting the much-touted resignation of current Deputy President David Mabuza and the pending resignation of Transport Minister Fikile Mbalula to become full-time ANC secretary-general.

But a Cabinet reshuffle may well also deal with ineffective ministers, the 2022 ANC conference resolution to move Eskom to the energy portfolio, and possibly further steps in the so-called reconfiguration of the state that’s been a theme in the Ramaphosa presidency.

All that will load once the statutory and constitutional requirements are in place and all the boxes have been ticked. DM