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What happens if a government can’t be formed after SA’s May 29 election?

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Melanie Verwoerd is a former ANC MP and South African ambassador to Ireland.

The short answer is that after 90 days, another election must be held, but this is unlikely to happen.

With the ANC likely to fall under 50% in Wednesday’s general election, I am often asked, what would happen if a government (or coalition) simply can’t be formed? 

The short answer is that after 90 days, another election must be held, but this is unlikely to happen.

After the counting of the ballots at the polling stations, the results will be forwarded to the Electoral Commission of SA’s (IEC’s) national counting centre at Gallagher Estate in Midrand, Gauteng. Once the IEC has received all the results and is happy that there are no major disputes or problems, the chairperson of the IEC will announce the result — most probably four to five days after the election.

From that moment, the Chief Justice will have 14 days to convene Parliament. At that meeting, newly elected members will be sworn in, after which they must elect the Speaker and Deputy Speaker. 

The Chief Justice will then call for nominations for the position of President. There is no limitation on the number of nominations and MPs must vote by secret ballot. 

In the past, there was never any question that the ANC candidate would win, since more than 50% of the MPs were from the ANC. However, with that scenario possibly changing, things could become more complicated. 

Schedule 3 of the Constitution states that the candidate with the majority of votes wins. However, there is still some debate about what “majority” means in this instance. The widespread interpretation is that it means 51% of those voting. This means that if some choose to abstain or if not all 400 MPs are present on the day it could be less than 201. There is also a problem that the Constitution does not clarify what happens if there are spoilt ballots. 

In this interpretation, if one candidate does not get more than 50% of the votes cast, the Constitution provides for a runoff mechanism where the candidates with the least votes are eliminated until one candidate gets 51% of the votes cast. 

There is another legal opinion which says that “majority” in this instance means the “most” of all the votes cast. In other words, whoever comes first is declared the winner. The elimination procedure, they argue, is only if the top two candidates get the same number of votes and a run-off is then required. 

This constitutional provision has never been tested and it would be interesting to see which way the legal pendulum will swing. One can assume that the second option would suit the ANC better — especially if it does not get 50% of the vote in the election, but it is unclear whether it would be able to convince the other parties and Chief Justice of this interpretation. 

Either way, the Constitution says that if no one can be declared the winner after the last two candidates are left standing, the Chief Justice must again convene Parliament a week later in the hope that parties would have made deals by then. 

Of course, irrespective of which legal opinion is correct, it would be imperative for the ANC to get a coalition agreement in place before the first convening of Parliament, to ensure that its presidential candidate would get the majority of votes. 

It is possible — although very unlikely — that the opposition parties could all agree on a candidate, which would then see the ANC nominee losing, even if the “most votes” scenario is accepted.

So, if the ANC falls below 50% there will be frantic negotiations in the two weeks following the election. 

If it gets above 45% — an outcome most opinion polls now seem to favour — it should be fairly simple. The ANC could form a coalition with the IFP and/or smaller parties. The flies in the ointment will be the outcomes in Gauteng and KwaZulu-Natal. 

In Gauteng, the numbers seem to indicate that either an ANC-DA or ANC-EFF coalition will be required to get a majority. In KwaZulu-Natal, it will be more complicated. Recently released polling by MarkData puts the province out of reach of any ANC coalition unless the party is willing to work with MK. However, polling by the Social Research Foundation suggests that an ANC-DA-IFP coalition might get it above 50%. 

Irrespective, if the ANC wants to retain control of these two provinces it will have to talk to the DA and/or EFF. It is possible that each of these parties will insist on some presence in a national coalition as a trade-off for its participation in a Gauteng and/or KZN coalition. This is where it can get very tricky. 

Those of us old enough to remember Codesa, know that President Cyril Ramaphosa excels in these kinds of negotiations. The only question is whether he can do it within 14 days. Hopefully, some preliminary discussions are already taking place, because even a political junkie like myself couldn’t bear the thought of another election so soon after this one. DM

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Comments - Please in order to comment.

  • Grenville Wilson says:

    Why no comments?

  • Coen Gous says:

    Interesting thoughts. Whatever happens, it is likely to be very, very messy!

  • Mike SA says:

    Ramaphosa did not excel in Codessa, he took advantage of a Nat party that was in a hurry to forge a lifeboat for itself.
    Ramaphosa has played his hand, we know that you cant trust him as far as you can throw him, so having made enemies with Thabo Mbeki, Jacob Zuma and the majority of the white electorate he wont be part of any negotiations.

    • D'Esprit Dan says:

      Can’t stand Ramaphosa, but Mbkei has no constituency outside of being rolled for elections, Zuma even less so in the ANC, whilst the white electorate is probably the least of the ANC’s concerns as they cling desperately to power. The DA needs to find a wee bit of humility and perspective if they want to be part of government post elections.

  • Chris Gerber says:

    If I look at coalitions on municipal level, it can be very messy and tricky! The smaller coalition partner usually sees this as a massive opportunity for control that does not justify their amount of votes received. But that is the game, and such are the characters that plays it.

    • Bob Dubery says:

      I agree. Johannesburg has gone slowly down hill since 2016 when the first multi-party coalition took charge. They spend most of their time papering over cracks. Plus small parties become kingmakers and end up with influence far beyond the mandate they got from the electorate, then, in some cases, start sounding out other parties with whom they can cobble together numbers that will produce a majority, in return for still more influence.

      But a two party coalition should be easier to manage, especially at national level where they understand (hopefully) what is at stake if they allow their arrangement, uneasy as it is, to collapse.

      • D'Esprit Dan says:

        Bob, I hope you’re right about two (max three) party coalitions. The last thing we can afford is the highway bandits of kingmakers holding us to ransom. Perhaps we can turn it around and hold them to (legal) ransom?

  • Noel Soyizwaphi says:

    The majority of black vote will, again turn to the Afrucan National Congress. Therefore, the ANC and ANC alone will form a national government as mandated by an outright majority. A few individual party leaders could be invited to serve in that government. This outcome is going to be the result of two very important issues: (a) lack of authentic, credible and viable opposition in the country, (b) the majority will be responding to the scramble for Africa and continued insults being hauled at them by the base support of the current opposition. I will be back on the first of June to explain how is Africa responding.

  • Maronga Maronga says:

    I thought IFP is in coalition with 10 other parties… excluding ANC, EFF, MK.. or the paper is not worth anything. On another note… the best possible scenario is ANC and DA, or ANC, IFP and FF+… worst case scenario… ANC, EFF, MK.

  • Stefan Schmikal says:

    Shout-0ut to Yeats…

    Things fall apart; the centre (of ANC-dominated hegemony) cannot hold;
    Mere (political) anarchy is loosed upon the world (of South Africa),
    The blood-dimmed (aka red beret) tide is loosed, and everywhere
    The ceremony of innocence (or electoral relevance) is drowned;
    The best (i.e. average citizens who just want things not to get worse) lack all conviction, while the worst (hatemongers, rent seekers tenderpreneurs etc.)
    Are full of passionate intensity.

  • William Grunow says:

    The law is crystal clear, it says majority not plurality, must be 50% + 1

  • Mordechai Yitzchak says:

    To paraphrase Mark Twain – The reports of the ANC’s death are greatly exaggerated. The egos have now spoken and Zuma has shown he has ballot-box power as well as impi muscle to burn down warehouses in KZN, and the youth-league in red berets have reached their support ceiling. As much as ‘things fall apart’, so they come together. Expect Cyril to be the fall-guy (and be given a dignified exit, making the announcement himself that ‘for the best interests of all South Africans its best for new, young leadership, and for all of us to be friends), expect Zuma to be indemnified from all past and future prosecution (along with his buddies), expect Mashetile as our new President and one of Zuma’s kids as the Deputy, and a re-branded NANC (New ANC). Bigger and better predators incoming …

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