Background
Last month it was reported that Parliament had adopted a new rule that ‘makes it duty-bound to ensure a debate of no confidence in the President is given due priority.’[1] This was in response to the Constitutional Court’s (ConCourt’s) ruling in the Mazibuko judgment handed down late in 2013.[2]
In terms of the new rule:
"A member [of Parliament] may propose that a motion of no confidence in the Cabinet or the president in terms of section 102 be placed on the order paper.
The speaker of the National Assembly should then accord the motion due priority and before scheduling it should consult with the leader of government business and the chief whip of the majority party.
The motion should comply, to the satisfaction of the speaker, with the prescripts of any relevant law or any relevant rules and orders of the House and directives and guidelines recommended by the rules committee and approved by the House, before being placed on the order paper, and should include the grounds on which the proposed vote of no confidence is based.
The speaker may request an amendment of or in any other manner deal with a notice of a no confidence motion which contravenes the law, rules and orders of the House or directives and guidelines approved by the House.
After proper consultation and once the speaker is satisfied that the motion of no confidence complies with the aforementioned prescribed law, rules, orders, directives or guidelines of the House, the speaker should ensure that the motion of no confidence is scheduled, debated and voted on within a reasonable period of time given the programme of the assembly.
"If a motion of no confidence cannot reasonably be scheduled by the last sitting day of an annual session, it must be scheduled for consideration as soon as possible in the next annual session," states the rule." [3]
Mazibuko Judgment
In light of the ConCourt’s earlier judgment handed down in Ambrosini, [4] which held that Parliament’s failure to allow an individual Member of Parliament (MP) to table legislation was unconstitutional, given the express constitutional provisions permitting them to do so, it came as a surprise to many that Mazibuko was litigated all the way to the ConCourt.
Given that, as in Ambrosini, the ability of an MP to move a ‘motion of no confidence’ in the Cabinet or the President is specifically mentioned in Section 102 of the Constitution, it seemed clear that when Lindiwe Mazibuko, as Leader of the Opposition, tabled her motion of no confidence against the President, it would be dealt with simply, as presumably Ambrosini, had set the precedent for situations such as these.
However, the judgment in Mazibuko is enlightening.
As the ConCourt media summary states:
"(In) November 2012, Ms Mazibuko gave notice in the National Assembly of a motion of no confidence in the President in terms of section 102(2) of the Constitution. She referred the notice to the Chief Whips’ Forum and the Programme Committee for the purpose of determining whether and when the motion should be debated and voted on in the Assembly. Neither of these committees reached consensus and the motion was not tabled before the Assembly.
(Mazibuko) instituted urgent proceedings in the Western Cape High Court. She sought an order directing the Speaker to take necessary steps to ensure that the motion of no confidence was debated and voted on by 22 November 2012. The High Court dismissed the application.
In this Court the applicant contended that the High Court was incorrect to find that the Speaker did not have the power in terms of the Rules of the Assembly to schedule the motion in the event of a deadlock within the Programme Committee. In the direct access application, the applicant argued that the Rules are inconsistent with the Constitution to the extent that they do not vindicate the right of a member of the Assembly to have a motion of no confidence debated and voted on as a matter of urgency.
In a majority judgement written by Moseneke DCJ (Froneman J, Khampepe J, Nkabinde J, Skweyiya J and Van der Westhuizen J concurring), the Court held that section 102(2) of the Constitution confers on a member of the Assembly the entitlement, to give notice of and have a motion of no confidence in the President tabled and voted on, in the Assembly within a reasonable time. The primary purpose of a motion of no confidence is to ensure that the President and the national executive are accountable. The Rules of the Assembly must permit a motion of no confidence in the President to be formulated, discussed and voted for in the Assembly within a reasonable time. (To) the extent that the Rules regulating the Assembly do not vindicate the rights of members of the Assembly in this respect, they are inconsistent with section 102(2) of the Constitution and invalid. The declaration of constitutional invalidity is suspended for six months to allow the National Assembly to correct the defect.
In relation to the appeal the majority held that on a proper reading of the Rules, the Speaker acting alone has no residual power to schedule a motion of no confidence in the President to be debated and voted on. (Further) any event the relief sought in the appeal (had) become moot.
A minority judgment written by Jafta J (Mogoeng CJ, Mhlantla AJ and Zondo J concurring) held that the applicant has not made out a case for the granting of direct access to this Court because it is not in the interests of justice to entertain the matter when the Assembly has already begun amending its Rules. The separation of powers doctrine precludes the judiciary from intervening in matters that fall within the domain of Parliament except where the intervention is mandated by the Constitution. It was stated that in this case the necessary justification was not shown. Therefore the minority would have denied direct access." (Emphasis added) [5]
The ConCourt ultimately granted leave to appeal and direct access. However, the appeal was refused with costs, but the direct access application was successful on the merits.
What Does This Mean?
The majority judgment is noteworthy for 3 significant reasons:
First, it reaffirms the principle of constitutional certainty that Ambrosini created the precedent for. It is clear, that on reading both these judgments, explicit constitutional entitlements must be given effect to. Any conduct that deviates from or frustrates such an entitlement is invalid to the extent that it does not validate such rights.
Secondly, while the majority found that the Speaker had no residual power to table a motion of no confidence, the judgment reaffirms the idea that the Speaker is responsible for the vindication of rights of MPs and must, as far as possible, give effect to them.
Thirdly, where the rules of Parliament curtail the Speaker’s ability to do so, and where such conduct would be constitutionally impermissible, our Courts can intervene to give effect to the rights of MPs. Neither Parliament, nor the Executive by extension, can hide behind the separation of powers doctrine. Our Constitution specifically entitles our Courts to review the conduct of the other branches of state and, where necessary, intervene to correct them. Our courts do this regularly: judicial review is an intrinsic power that Courts have to keep Parliament and the Executive accountable in our constitutional dispensation. This is in direct contrast to what the minority found.
Concerns
However, there are 2 concerns that are noteworthy:
First, that the motion of no confidence is still qualified by the ‘reasonableness’ requirement. This is disconcerting given the nature of such a motion: it is intended to be an immediate rebuke of the Executive and a quick move to unseat it. By subjecting it to a ‘reasonableness’ requirement (though such may have a concrete definition in our law), possibly robs the motion of the full impact as a tool of accountability that it is supposed to have.
Secondly, the minority of the ConCourt would have thrown out this case on the grounds of the separation of powers doctrine. While it is acceptable, as our ConCourt itself has acknowledged in Bato Star,[6] that our Courts should exercise restraint and show deference to other organs of state before intervening in their affairs, that this case involved a clear deviation from, and frustration of an express constitutional provision, is concerning. Notwithstanding the fact that Parliament had begun amending the rule in question, the fact that the minority would have done nothing is cause for concern.
Conclusion
While the HSF is satisfied that the majority, in the end, made the right decision, which was to vindicate the rights afforded to all MPs, the lack of speed with which the majority would have such a motion addressed, and the minority judgment’s stance on the separation of powers, are unsatisfactory. In a robust democracy, Parliament must be a chamber that debates matters of national importance and which actively holds the Executive to account. We are concerned that where MPs opt to do so, such drawn-out litigation would be embarked upon, rather than giving effect to established precedent and the Constitution itself. That being said, the HSF is pleased that progress is being made and that Parliament is updating its rules so that they are constitutionally sound.
References
[1] http://mg.co.za/article/2014-02-25-parliament-must-debate-motions-of-no-confidence-timeously
[2] http://www.saflii.org/za/cases/ZACC/2013/28.html. Mazibuko v Sisulu and Another 2013 (11) BCLR 1297 (CC)
[3] Note 1
[4] http://www.saflii.org.za/za/cases/ZACC/2012/27.html. Oriani-Ambrosini, MP v Sisulu, MP, Speaker of the National Assembly 2012 (6) SA 588
[5] http://www.saflii.org.za/za/cases/ZACC/2012/27media.doc. Note 2. Media summary edited.
[6] http://www.saflii.org/za/cases/ZACC/2004/15.html. Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism and Others 2004 (4) SA 490 (CC).
Kameel Premhid
HSF Research Fellow
kameel.premhid@gmail.com
