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Issued by Daniela Ellerbeck and Ismail Joosub on behalf of the FW de Klerk Foundation on 06/06/2024



The 2024 South African National and Provincial Elections have ushered in a new era of political complexity: The African National Congress (“ANC”) failed to secure a majority for the first time, necessitating national coalition talks. This article looks at what (if anything) the Constitution says about such a coalition, the ramifications of a deadlock in electing a President and the need for a Government of Constitutional Unity.


What Were These Elections About?

In the past election we elected who would represent us in Parliament’s first house, the National Assembly (“Parliament”). This ensures government by the people under the Constitution (section 42(3)). i.e. Parliament governs on our behalf.

To this end, the Constitution empowers Parliament to:

  1. Choose the President;
  2. Be a national forum for public consideration of issues;
  3. Pass proposed laws (i.e. bills); and
  4. Scrutinise and oversee the Executive’s actions (section 42(4)) – i.e. how is the Executive implementing the laws that Parliament makes, or co-ordinating the functions of state departments and administrations, etc. (section 85(2) of the Constitution).


The Post-Election Landscape: A Brief Overview

The election results marked a watershed moment in South Africa’s political history, with no one party obtaining an outright majority (i.e. over 51%) of the seats in Parliament:

The ANC still has the most seats of any party in Parliament with 159 out of the 400 seats in total, but it no longer has more than half (i.e. it is below 51%). This means a variety of things, including that it will not be able to make changes to the Constitution (see section 74 of the Constitution).

Parliament elects the President, passes bills, etc, by a majority of votes. There have been some different opinions about whether “majority” means the most votes or 51%. For example, if it means the most votes, then if a bill is being voted on and 159 MPs out of the 400 vote to pass it, 158 MPs vote to reject it (and 83 MPs abstain from voting), then the bill passes even though it obtained only 39,75% of the vote.

Given that the Constitution specifically states elsewhere (in section 74 for example), that certain things Parliament votes on, such as changes to the Constitution, must obtain a supporting vote of at least e.g. 75% percent of out of the 400 MPs, it is submitted that what is referred to here is simply a matter of obtaining the highest number of votes. This view is further substantiated by, e.g., items 7 and 8 of Part A of Schedule 3 to the Constitution, which envisions an elimination process of the various presidential candidates with the least number of votes until only two candidates remain and one receives the majority (i.e. a situation where the vote will be 51% to 49%).


Why Then Have Coalition Talks Begun?

A coalition ensures the ANC will have 51% or more of the votes for its presidential candidate and prevents the President and all Ministers and Deputy Ministers from having to resign, because it would safeguard against a motion of no confidence being able to be passed through Parliament. (See section 102 of the Constitution.) A coalition also offers a pragmatic solution to the challenge of minority rule, allowing the avoidance of having to lobby opposition MPs to vote in one’s favour for every single bill or motion one wants to pass through Parliament. Lastly, it prevents Acting President Ramaphosa from having to dissolve Parliament for failing to elect a new President within 30 days and another election having to be held within 90 days (section 50(2)(b) read with section 49(2) of the Constitution). Thus, the necessity of a coalition government.

The Constitution does not prescribe a specific process for the formation of a coalition government. Rather, it leaves this largely to the discretion of the participating parties, who have the autonomy to negotiate and form alliances based on their respective interests and ideologies. Such coalition talks typically involve negotiations between parties to identify common ground, allocate ministerial positions and outline policy priorities.


Possible Coalition Scenarios:

With the ANC’s historic animosity toward the DA and potential demands from the EFF in exchange for support, coalition negotiations may face significant challenges. Furthermore, the ANC’s strained relationship with the MK Party, which conditions its participation on President Ramaphosa’s resignation, adds another layer of complexity.

The intricacies of coalition-building and negotiation underscore the need for political stakeholders to prioritise dialogue and consensus-building in the post-election landscape. In short, negotiation skills are key!

Scenario 1: ANC and DA Coalition

In this scenario, the ANC (159 seats) forms a coalition with the DA (87 seats), reaching a combined total of 246 seats. Together, they secure the necessary majority of 201 seats to elect a President, ensuring a stable governance framework.

Scenario 2: ANC and EFF Coalition

Here, the ANC (159 seats) seeks a coalition with the EFF (39 seats), falling just short of the majority with a combined total of 198 seats. To bridge the gap, they may enlist the support of smaller parties like the IFP (17 seats), aiming to surpass the 201-seat threshold required for electing a President.

Scenario 3: ANC and MK Coalition

In this scenario, the ANC (159 seats) aligns with the MK party (58 seats), amassing a total of 217 seats. This coalition surpasses the 201-seat majority required to elect a President, ensuring a decisive outcome in parliamentary proceedings.


The Government of National Unity: Lessons from History

The Government of National Unity was formed in 1994, following the country’s first democratic elections post-apartheid. It arose from negotiations between the ANC, led by Nelson Mandela, and the National Party (“NP”), which had previously enforced apartheid policies. The purpose of the Government of National Unity was to ensure a peaceful transition from apartheid to democracy and to foster national reconciliation. It included representatives from various political parties, symbolising a commitment to inclusivity and unity. It aimed to address the deep-seated divisions and inequalities inherited from the apartheid era, laying the groundwork for a more equitable and democratic society. Despite its challenges, the Government of National Unity played a crucial role in promoting stability and consensus-building during a critical period of South Africa’s history. At present, talks of a new Government of National Unity are on the table, with the ANC considering a model with two Deputy Presidents, likely from whichever parties it can successfully negotiate a coalition with.


Conclusion: A Call for Constitutional Unity

Not all parties who obtained a seat in Parliament are loyal to the Constitution. To protect our democracy, the FW de Klerk Foundation is strongly of the view that what is needed is a Government of Constitutional Unity, rather than a Government of National Unity. A Government of Constitutional Unity consists of political parties loyal to the Constitution, while a Government of National Unity is a broad coalition of all parties who obtained a seat in Parliament.

Thus, to safeguard our nation’s democracy, what is needed is a broad coalition of all parties loyal to the Constitution and committed to the Bill of Rights – a Government of Constitutional Unity.

In embracing the constitutional imperative of consensus-building, political leaders must prioritise the national interest above partisan divides, forging a future grounded on our Constitution. By upholding the Constitution as the supreme law of the land, we ensure that our governance reflects the aspirations and values of all South Africans, fostering trust, stability and progress for generations to come.