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

With the ANC likely to fall under 50%, 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 various polling stations, the results will be forwarded to the IEC’s national counting centre at Gallagher Estate. 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 whether the ANC candidate would win, since more than 50% of the MPs were from the ANC. However, with that scenario possibly changing things could get a bit more complicated. 

Schedule 3 of the Constitution states that the candidate with the majority of the votes wins. However, there is still some debate about what “majority” means in this instance. The common and widespread interpretation is that it means 51% of those voting. This means that if some choose to abstain or if not all 400 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 spoiled ballots. 

In this interpretation, if one candidate does not get more than 50% of the votes cast, the Constitution provides for a run-off mechanism where the lowest candidate is eliminated until one candidate gets 51% of the votes cast. 

There is another legal opinion that 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 they do not get 50% of the vote in the election, but it is not clear if they 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 some deals by then. 

Of course, irrespective of which legal opinion is correct, it would be imperative for the ANC to get some coalition agreement in place before the first convening of parliament, to ensure that their 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 vote” scenario is accepted.

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

If they get 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 they are willing to work with MK. However, polling by Social Research Foundation suggests that an ANC/DA/IFP coalition might get them over 50%. 

Irrespective, if the ANC wants to retain control of these two provinces they 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 their 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 junky like myself couldn’t bear the thought of another election so soon after this one.