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[2019] ZAWCHC 31
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Mohlaloga v Speaker of the National Assembly of the Republic of South Africa (7082/2018) [2019] ZAWCHC 31 (26 March 2019)
Republic of South Africa
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case
No. 7082/2018
Before: The Hon. Mr Justice Binns-Ward
Date
of hearing: 18 March 2019
Order made: 19 March 2019
Reasons
furnished: 26 March 2019
In
the matter between:
RUBBEN
MANYABA
MOHLALOGA
Applicant
and
THE
SPEAKER OF THE NATIONAL ASSEMBLY
OF
THE REPUBLIC OF SOUTH AFRICA
and
four
others
First
to Fifth Respondents
JUDGMENT
BINNS-WARD J:
[1]
In this matter, application was made as a
matter of urgency for an interdict restraining the National Assembly
from adopting a resolution
for the removal of the applicant from his
position as the chairperson of the Independent Communications
Authority of South Africa
(‘ICASA’) and as a member of
its Council until such time as his appeal against his convictions on
charges of fraud
and contravening s 4 of the Prevention of
Organised Crime Act 121 of 1998 (money laundering) under case
no. 111/86/2012
in the Regional Court at Pretoria has been
finally determined. ICASA is a juristic person and an organ of
state in the national
sphere of government. It operates through
its Council.
[1]
[2]
The application was heard on 18 March
2019, on the day preceding the scheduled consideration of the matter
by Parliament.
I made an order on the morning of 19 March 2019
dismissing the application with costs. It is a matter of public
record that
the National Assembly adopted a resolution later that day
removing the applicant from office. When I made the order I
indicated
that written reasons for my decision would be handed down
later. This judgment sets out those reasons.
[3]
The background is that the applicant was
convicted on 15 January 2018 and, on 14 February 2019, he was
sentenced to 20 years’
imprisonment. He was granted leave
to appeal against the sentence, but leave was refused in respect of
the conviction.
On 7 March 2019, he submitted a petition to the
Judge President of the Gauteng Division of the High Court for leave
to appeal against
his conviction. The petition had not yet been
decided when the interdict application came before me.
[4]
Section 6(1) of the Independent
Communications Authority of South Africa Act 13 of 2000 (‘the
ICASA Act’) provides:
Disqualification
(1) A person may not be appointed as a councillor if he
or she-
(a) is not a citizen of the Republic;
(b) is not permanently resident in the Republic;
(c) is a public servant or the holder of any other
remunerated position under the State;
(d) is a member of Parliament, any provincial
legislature or any municipal council;
(e) is an office-bearer or employee of any party,
movement or organisation of a party-political nature;
(f) or his or her family member has a direct or indirect
financial interest in the electronic communications, postal or
broadcasting
industry;
(g) or his or her business partner or associate holds an
office in or with, or is employed by, any person or body, whether
corporate
or unincorporated, which has an interest contemplated in
paragraph (f);
(h) is an unrehabilitated insolvent;
(i) has been declared by a court to be mentally ill or
disordered;
(j) has at any time been convicted, whether in the
Republic or elsewhere, of-
(i) theft, fraud, forgery or uttering a forged document,
perjury, an offence in terms of the Prevention of Corruption Act,
1958
(Act 6 of 1958), the Corruption Act, 1992 (Act 94 of 1992), Part
1 to 4, or section 17, 20 or 21 (in so far as it relates to the
aforementioned offences) of Chapter 2 of the
Prevention and Combating
of Corrupt Activities Act, 2004
, or any other offence involving
dishonesty; or
(ii) an offence under this Act or the underlying
statutes;
(k) has been sentenced, after the commencement of the
Constitution of the Republic of South Africa, 1993 (Act 200 of 1993),
to a
period of imprisonment of not less than one year without the
option of a fine; or
(l) has at any time been removed from an office of trust
on account of misconduct.
The various grounds of disqualification set forth in s 6(1) are
those to be expected in respect of persons being considered
for
appointment to a body charged with a wide range of important
functions. These include adjudicative functions in respect of
matters
of significant financial and political consequence, which, if they
are to be carried out effectively and in a manner inspiring
public
confidence, require qualities of independence and impeccable probity
in the persons discharging them. The chairperson
is a key
member of the Council, being responsible, in terms of s 4(5) of
the ICASA Act, for providing ‘overall leadership
to the
Council’ and managing the activities of the councillors.
[5]
The resolution enlisted for consideration
by the National Assembly was put on the order paper for consideration
in terms of s 8
of the ICASA Act. Section 8 provides as
follows in the respects relevant for present purposes:
Removal from office
(1) Subject to subsection (2), a councillor may be
removed from office on account of-
(a) …;
(b) …,
(c) …;
(d) …;
(e) …;
(f) his or her becoming disqualified as contemplated in
section 6 (1); or
(g) … .
(2) A councillor may be removed from office only on-
(a) a finding to that effect by the National Assembly;
and
(b) the adoption by the National Assembly of a
resolution calling for that councillor's removal from office.
(3) The Minister-
(a) may suspend a councillor from office at any time
after the start of the proceedings of the National Assembly for the
removal
of that councillor;
(b) must remove a councillor from office upon adoption
by the National Assembly of the resolution calling for that
councillor's
removal;
(c) must suspend a councillor from office at any time
after the start of the proceedings of the National Assembly for the
removal
of that councillor upon the request of the National Assembly.
Were it to adopt a resolution to remove the applicant from office,
the National Assembly would be acting in terms of s 8(2)
read
with ss 8(1)(f) and 6(1)(j) of the ICASA Act. The
provisions of s 8 are but one of the myriad mechanisms in
the
constitutional and legislative framework that give effect to one of
the National Assembly’s primary constitutional responsibilities
provided for in terms of s 55(2) of the Constitution; i.e. the
responsibility to ensure the accountability to
it
of all
organs of state in the national sphere of government and maintaining
oversight of the exercise of national executive authority,
including
the implementation of legislation, and oversight of any organ of
state.
[6]
Proceedings for the applicant’s
removal from office commenced before the National Assembly shortly
after the date of his conviction.
The matter was placed before
the relevant portfolio committee. The applicant made
representations at the time to the Deputy
Speaker in which he
indicated his intention to appeal against his conviction and
contended that the effect of any such appeal would
be to suspend the
effect of the judgment in terms of which he had been convicted.
The applicant argued that consequently,
for the purposes of s 8
of the ICASA Act, he could not be regarded as having been
disqualified in terms of s 6(1)(j)
until the final determination
of any appeal he might bring.
[7]
The Deputy Speaker responded to the
applicant’s representations in a letter dated 8 February
2018. He informed
the applicant that his letter had been
referred to the portfolio committee on communications for
consideration. The Deputy
Speaker also remarked that he
accepted that the effect of the applicant’s appeal was to
suspend the effect of his conviction,
and that pending the outcome of
his appeal the question of a resolution calling for his removal
therefore did not arise.
[2]
[8]
Notwithstanding the opinion expressed by
the Deputy Speaker, the portfolio committee resolved on 27 February
2018 to commence
the process for the applicant’s removal from
office. A letter, dated 28 February 2018, was addressed to the
applicant
calling upon him to provide the committee with written
reasons why he should not be removed from office. He responded
though
his then attorneys contending that his prospects of success on
appeal were good and that a balance should be struck between his
personal interests and the duties of the ICASA Council. It was
submitted that it would be more appropriate to suspend him
from his
duties pending the determination of his appeal than to remove him
from office. Notably, the applicant’s attorneys
placed no
reliance on an undertaking by the Deputy Speaker.
[9]
It would appear that the portfolio
committee was not persuaded by the applicant’s representations
because a resolution for
his removal from office was subsequently
scheduled for consideration by the National Assembly on 24 April
2018. That happened
pursuant to a unanimous decision by the
committee on 27 March 2018.
[10]
The applicant reacted by instituting
proceedings in this court for urgent interdictory relief on the very
day that the National
Assembly was scheduled to consider his removal
from office. The Speaker and her deputy were cited as the first
and second
respondents, respectively. The chairperson of the
portfolio committee was joined as the third respondent and the
Minster
as the fourth respondent. By agreement between the
parties, Stelzner AJ made an order (i) removing the item
from
the parliamentary agenda, (ii) postponing the application
sine die
,
with leave to the applicant to re-enrol it if the item were placed
back of the National Assembly’s agenda and (iii) recording
an undertaking by the first to third respondents to give the
applicant’s attorney of record at least 48 hours’ written
notice should the item be placed back on the agenda. Costs were
stood over for later determination.
[11]
On 24 April 2018, the National
Assembly resolved to refer the matter back to the portfolio committee
for further consideration
and report. The Minister of
Communications thereafter afforded the applicant an opportunity to
make representations to her
on the question of his suspension from
office. The Minister intimated that the applicant’s
suspension from office was
being considered in the light of his
convictions and the commencement by the National Assembly of the
process to remove him from
office. It would appear therefore
that the Minister was considering acting in terms of s 8(3)(a)
of the ICASA Act.
The applicant submitted written
representations to the Minister on 26 April 2018 through a
different firm of attorneys.
The applicant’s
representations merely reiterated the arguments upon which his urgent
application had been brought.
They are summarised in paragraph
[14]
below.
[12]
Notwithstanding his representations and
contentions, the portfolio committee resolved on 29 May 2018 to
request the Minister
to suspend the applicant from office. This
evoked a letter from the applicant’s new attorneys to the
Speaker, the chairperson
of the parliamentary portfolio committee and
the Minister, dated 12 June 2018. The attorneys contended,
amongst other
things, that, in the light of their understanding that
the portfolio committee was not proceeding with the removal of the
applicant
from office at that stage, it was not open to the Minister
to suspend him. The chairperson of the portfolio committee
responded
by letter on 18 June 2018 refuting the applicant’s
attorney’s assertion that the removal process had been halted.
The chairperson pointed out ‘[t]
he
process is ongoing as indicated by the committee resolution which
calls for suspension pending the finalisation of the process
’.
[13]
On 12 March 2019 the portfolio
committee reported to Parliament that it had resolved that the
applicant should be removed as
a councillor and chairperson of the
ICASA Council. A resolution to give effect to the report was
then scheduled for consideration
by the National Assembly on 19 March
2019. In compliance with the undertaking incorporated in the
court order of 24 April
2018, the applicant was given notice of
the intended proceedings in the National Assembly. He then
promptly re-enrolled the
interdict proceedings for hearing on
supplemented papers before me as the duty judge dealing with matters
of urgency.
[14]
The
application was founded on two contentions:
1.
That
the intended proceedings in the National Assembly were in breach of
an undertaking by the Deputy Speaker that the applicant’s
removal from office on account of his convictions would stand over
until the final determination of any appeals against it; and
2.
That
on a proper interpretation of s 6(1)(j) of the ICASA Act, the
appellant was not disqualified from holding office whilst
his
convictions were subject to appeal.
[15]
Proceedings in which a litigant prays for
interim interdictory relief that would impinge on the functions of
Parliament were it
to be granted call out for judicial
circumspection; cf.
National
Treasury and Others v Opposition to Urban Tolling Alliance and Others
2012(6) SA 223 (CC) and
International
Trade Administration Commission v SCAW SA (Pty) Ltd
2012 (4) SA 618
(CC). Those cases involved applications for
interdictory relief that would impinge on the functions of the
executive, but
the pertinent principles, which are grounded in
judicial respect for the separation of powers, apply equally when the
relief would
entail encroaching on the domain of the legislative arm
of the state.
[16]
It appears plainly from the provisions of
ss 6 and 8 of the ICASA Act, quoted above, that it is within the
exclusive functional
domain of the National Assembly to make a
finding whether the applicant is disqualified from office in terms of
s 6(1)(j),
and whether it should on that account adopt a
resolution to remove him. Necessarily inherent in that
acknowledgment must
be an acceptance that making a primary finding on
those questions is not a judicial function. On what grounds
then might
a court intervene to stop the Assembly making a decision
that has been specially entrusted to it by legislation?
[17]
The proper role of the courts in the given
situation may be illustrated by hypothesising the nature of the
remedy that a court would
be inclined to grant were an interested
party to institute litigious proceedings on the grounds that the
National Assembly was
unlawfully neglecting to exercise its functions
under s 8. Our constitutional jurisprudence suggests that
the indicated
remedy in such a case, at least at first resort, would
be a direction to Parliament to exercise its functions, not one that
would
involve the court in assuming the role of Parliament in a
substitutive way by making the decisions for it.
[3]
Depending on the circumstances, a court might also be moved to assist
in conducing to a lawful discharge by Parliament of
the function at
issue by giving declaratory relief. But the applicant did
not seek such relief in the current matter.
And, as I shall
indicate later in this judgment, I found no basis to consider
granting it
mero motu
under the heading of ‘further and/or alternative relief’.
[18]
A very compelling case would need to be
made out for a court, exceptionally, to pre-empt decisions falling
within the competence
of Parliament. Considerations of comity
between the three arms of the state militate against a too ready
willingness by the
courts to intervene in such situations in the
ordinary course. The principled approach in such circumstances
was summed up
by Ngcobo J in
Doctors
for Life International v Speaker of the National Assembly and Others
[2006] ZACC 11
,
2006 (6) SA 416
(CC),
2006 (12) BCLR 1399
(CC) at
paras. 68-70 as follows:
68. Courts in other jurisdictions, notably in the
Commonwealth jurisdictions, have confronted this question. Courts
have traditionally
resisted intrusions into the internal procedures
of other branches of government. They have done this out of comity
and, in particular,
out of respect for the principle of separation of
powers. But at the same time they have claimed the right as well as
the duty
to intervene in order to prevent the violation of the
Constitution. To reconcile their judicial role to uphold the
Constitution,
on the one hand, and the need to respect the other
branches of government, on the other hand, courts have developed a
“settled
practice” or general rule of jurisdiction that
governs judicial intervention in the legislative process.
69. The basic position appears to be that, as a general
matter, where the flaw in the law-making process will result in the
resulting
law being invalid, courts take the view that the
appropriate time to intervene is after the completion of the
legislative process.
The appropriate remedy is to have the resulting
law declared invalid. However, there are exceptions to this
judicially developed
rule or “settled practice”. Where
immediate intervention is called for in order to prevent the
violation of the Constitution
and the rule of law, courts will
intervene and grant immediate relief. But intervention will occur in
exceptional cases, such as
where an aggrieved person cannot be
afforded substantial relief once the process is completed because the
underlying conduct would
have achieved its object.
70. The primary duty of the courts in this country is to
uphold the Constitution and the law “which they must apply
impartially
and without fear, favour or prejudice.” And if in
the process of performing their constitutional duty, courts intrude
into
the domain of other branches of government, that is an intrusion
mandated by the Constitution. What courts should strive to achieve
is
the appropriate balance between their role as the ultimate guardians
of the Constitution and the rule of law including any obligation
that
Parliament is required to fulfil in respect of the passage of laws,
on the one hand, and the respect which they are required
to accord to
other branches of government as required by the principle of
separation of powers, on the other hand.
(Footnotes omitted.)
The question in
Doctors for Life
concerned intervention by the
courts in the legislative process, but the principles would apply
equally in this matter, which engages
Parliament’s statutory
oversight function in respect of extant legislation and an organ of
state.
[19]
The applicant contended that he could not
be afforded substantive relief once the parliamentary process had
been completed because
his appointment would be forfeit by then, and
someone else would have been appointed in his place. It is
evident that the
applicant’s primary concern was that his
removal from office would result in the loss of the substantial
remuneration package
(approximately R1,9 million) appurtenant to
the office of chairperson of Council of ICASA. By the time the
matter was
argued, the applicant had been suspended from office by
the Minister (presumably in terms of s 8(3)(a) of the ICASA
Act).
His counsel made it clear, however, that the applicant
did not seek to impugn his suspension. It was accordingly
apparent
that the applicant’s concern was not about being
prevented from fulfilling his statutory functions, but rather about
being
deprived of the benefits of office. When regard is had to
the ICASA Act in general, and the functions of the ICASA Council
in
particular, it is evident that the central consideration in issue in
the application of ss 6(1) and 8 is the operation
of the statute
for the benefit of the general public, not the personal interests of
any aspirant or incumbent council member.
In my judgment, any
determination of the appropriateness of the court’s
intervention at a pre-emptive stage therefore falls
to be guided in
these circumstances primarily by the public interest, and only very
incidentally, if at all, by interests of the
sort urged by the
applicant.
[20]
The applicant had no right to pre-emptive
protection against the operation of the Act according to its tenor.
He was not entitled
to ask the court to make the finding provided for
in s 8(2)(a) of the ICASA Act, when the legislation has
allocated that responsibility
to the National Assembly. The
only right that the law gives him is to ask the court to strike down
any decision the National
Assembly might make if he were able to show
that it had acted unlawfully. It would be in the context of an
application for
that form of substantive relief that he might be
advised, if he were able to make out a proper case for it, to seek
interim relief
suspending the effect of the impugned parliamentary
resolution pending the determination of his complaint about its
legality.
[21]
The substantive effect of the purportedly
interim relief actually sought by the applicant would be to prevent
Parliament from exercising
its responsibility. That would
plainly be inimical to the proper administration of the ICASA Act,
which is an important instrument.
It is the legislation enacted
to give effect to s 192 of the Constitution, and also intimately
bound up with the discharge
by the state of its duty, in terms of s 7
of the Constitution, to promote and protect the fundamental rights to
freedom of
expression and political choices. Parliament would
fall short in fulfilling its responsibility if the organ of state it
created
for these purposes were not structured and maintained in a
way that inspired public confidence in its integrity.
[22]
For these reasons I considered that the
applicant’s attempt to forestall the National Assembly from
exercising its oversight
function in terms of s 8 of the ICASA
Act was misconceived. He did not have any right to do so.
His application
fell to be dismissed on that account alone.
[23]
In the light of that conclusion it is
strictly unnecessary to consider the applicant’s contentions
based on the alleged undertaking
by the Deputy Speaker and the effect
of his pending application for leave to appeal against his
convictions. I shall nonetheless
do so briefly, however; for
the sake of completeness, and also to explain why I did not consider
it appropriate to come to the
applicant’s assistance with a
declaratory order concerning the effect of the pertinent provisions
of the ICASA Act.
[24]
In my view the Deputy Speaker’s
letter of 8 February 2018 did not contain an undertaking. He
merely expressed an opinion.
It is telling that the applicant’s
previous attorneys did not rely on any undertaking when they made
representations in March
2018 as to why he should not be removed from
office. That suggests that the notion that the applicant could
rely on an undertaking
was an idea come up with belatedly when he
engaged a different set of attorneys. The Deputy Speaker’s
letter made it
quite clear that he had referred the applicant’s
attorneys’ letter to the portfolio committee for
consideration.
That conveyed plainly enough that the further
conduct of the matter rested with the committee, not the Deputy
Speaker. In
any event I know of no basis upon which the Deputy
Speaker could by his personal undertaking competently hold off the
National
Assembly from exercising its statutory functions.
[25]
The applicant’s contention as to the
suspensive effect of his intended appeal was premised on the common
law doctrine that
an appeal against a conviction suspends the effect
of any sentence imposed in respect of it, including any accessory
orders, for
example the cancellation of a driver’s licence or a
declaration of incompetence to possess a firearm. The operation
of the common law in this respect has to a material extent been done
away with by the provisions of the Criminal Procedure Act.
[4]
But, as the applicant’s counsel correctly conceded during
argument, the question whether an appeal against conviction
suspended
the effect of a disqualification in terms of s 6(1)(j) of the
ICASA Act for the purposes of s 8 of the Act
is an issue of
statutory construction, not the application of the common law.
[26]
There are a number of recent decisions by
the Constitutional Court and the Supreme Court of Appeal that have
rehearsed the proper
approach to statutory interpretation. The
principles are clear. The language employed in the statute must
be construed
according to its tenor with due regard to its context
and the apparent objects of the legislation, and always mindful of
s 39(2)
of the Constitution.
[27]
There is no difficulty with the meaning of
s 6(1) of the ICASA Act. It sets out in paragraphs (a) to
(l) a list of factual
circumstances that render any person to whom
any one of them might apply disqualified from appointment to the
ICASA Council.
The rationale for many of them is obvious.
They are to ensure that only persons who are independent, unlikely to
be conflicted,
and of respectable and honest character should serve
on the Council. That its members should not only have, but also be
seen to
have, these attributes is necessary if the Council is to be
able to discharge its functions in the manner to which the statute is
directed, and if public confidence is to be inspired in its
decisions.
[28]
It is not in dispute that the applicant has
been convicted of fraud, and therefore is now a person to whom
s 6(1)(j) of the
ICASA Act would pertain. The argument is
that on a proper construction of the Act, the National Assembly is
nevertheless
not entitled to exercise its powers in terms of s 8
of the Act to resolve to require the Minister to remove him from
office
until he has exhausted all of the procedural remedies afforded
to him by law to challenge his conviction on appeal.
[29]
In my judgment the applicant’s
construction of the relevant provisions of the statute cannot be
sustained. Firstly,
it is not consistent with the plain and
unambiguous language of the provisions. Secondly, it requires
the implication of
considerations that would be inimical to the
evident purpose of the expression of the criteria for
disqualification in s 6(1).
Thirdly, it attributes to the
provisions an incidental purpose of protecting incumbent members of
the Council from removal by reason
of their personal interests, when,
as discussed above, the context clearly indicates that they are
directed instead at the effective
functioning of the Council for the
optimal realisation in the public interest of the objects of the Act.
[30]
The facts of matter demonstrate that the
criminal appellate process, just like the civil one, can be a long
drawn out process.
It is more than a year since the applicant
was convicted, and he is still in the process of obtaining leave to
appeal against the
conviction. If experience in this Division
is anything to go by, it could be a year or more before any appeal
that he is
given leave to prosecute is heard. And if the appeal
were unsuccessful, he could apply for special leave to appeal to the
Supreme Court of Appeal. And if he were not successful there,
he could apply to be heard in the Constitutional Court.
It is
not farfetched to conceive of the appellate process being stretched
over several years. Appointments to the ICASA Council
are
fulltime engagements for fixed terms (four years in the case of
ordinary councillors and five years in the case of the chairperson).
It follows that were the interpretation contended for by the
applicant to apply, a councillor convicted of fraud could, merely
by
exercising his or her right of appeal, feasibly hold off his removal
from office during the greater part of, or even the entire,
remainder
of his or her term. The scope for s 8 of the Act to apply
in respect of the disqualification criterion in
s 6(1)(j) would
be materially hamstrung, and in many cases rendered altogether
nugatory. Closely comparable considerations
would also apply in
respect of the disqualification criteria specified in paragraphs (k)
and (l) of the subsection. Such
results would be starkly at
odds with the apparent scheme and objects of the legislation.
[31]
Construing s 6(1)(j) according to its
tenor in relation to the National Assembly’s powers in terms of
s 8 would,
on the other hand, not leave a Council member who
happened to become the unfortunate victim of a demonstrably dubious
conviction
on a count of fraud or for contravening one of the ICASA
Act’s ‘underlying statutes’ open to arbitrary
removal
from office.
[5]
It would be open to such a member to put up a persuasive case to the
National Assembly not to remove him or her, or to postpone
any
determination until after he or she had taken the conviction on at
least one level of appeal. The provisions of s 8
do not
oblige the Assembly to request the Minister to remove a councillor
who has become disqualified in terms of s 6(1),
they empower it
to do so. It must exercise the power rationally.
[32]
For all these reasons I concluded that the
application fell to be dismissed with costs and made an order
accordingly. I should
perhaps make it clear that the costs
order included the costs stood over for later determination in terms
of the order made by
Stelzner AJ on 24 April 2018.
A.G. BINNS-WARD
Judge
of the High Court
APPEARANCES
Applicant’s counsel:
N.J. Graves SC
B. Joseph
Applicant’s attorneys
ENSafrica
Johannesburg and Cape Town
First
to Third Respondents’ counsel:
Karrisha Pillay
First to Third Respondents’ attorneys:
The State Attorney
Cape Town
[1]
See
s 3
of the
Independent
Communications Authority of South Africa Act 13 of 2000
and s 239
of the Constitution.
[2]
The relevant part of the Deputy
Speaker’s letter read as follows:
Kindly
note that Mr Mohlaloga’s right to appeal the conviction
of fraud and the offence of contravening the provisions
of
section 4
of the
Prevention of Organised Crime Act, 1998
, is duly noted.
Kindly note further that your letter has been referred to the
Portfolio Committee on Communications for
its consideration.
We
further recognise that pending an outcome of an appeal process a
conviction is suspended and subsequently (sic) section 8(3)(b)
of
the ICASA Act, … , does not arise.
[3]
Compare, for example,
United
Democratic Movement v Speaker of the National Assembly and Others
[2017] ZACC 21
,
2017 (5) SA 300
(CC),
2017 (8) BCLR 1061
, in which
the UDM sought, amongst other things, a mandatory interdict
directing the Speaker of the National Assembly to make
all the
necessary arrangements to ensure that the motion of no confidence in
the President scheduled for 18 April 2017 was to
be decided by
secret ballot, including designating a new date for the motion to be
debated and voted on no later than 25 April
2017. The
Constitutional Court, while being prepared to grant declaratory
relief in respect of the applicable principles,
refrained from
granting the interdict, and instead referred the matter back to the
Speaker to exercise her discretion with regard
to the principles as
declared. The Court’s approach in this regard was
explained at para. 94 of the judgment
as follows: ‘
Whether
the proceedings are to be by secret ballot is a power that rests
firmly in the hands of the Speaker, but exercisable subject
to
crucial factors that are appropriately seasoned with considerations
of rationality. This Court cannot assume that she
will not act
in line with the legal position and conditionalities as now
clarified by this Court. No legal or proper basis
exists for
that.
’
[4]
Act 51 of 1977 (s 309(4)(b)).
[5]
The ICASA Act’s ‘
underlying
statutes
’
are defined in s 1 of the Act to mean ‘
the
Broadcasting Act, Postal Services Act and Electronic Communications
Act
’.