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[2012] ZACC 27
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Oriani-Ambrosini, MP v Sisulu, MP Speaker of the National Assembly (CCT 16/12) [2012] ZACC 27; 2012 (6) SA 588 (CC); 2013 (1) BCLR 14 (CC) (9 October 2012)

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CONSTITUTIONAL COURT OF SOUTH
AFRICA
Case CCT 16/12
[2012] ZACC 27
In the matter between:
MARIO GASPARE ORIANI-AMBROSINI,
MP
...................................................
Applicant
and
MAXWELL VUYISILE SISULU, MP
SPEAKER OF
THE NATIONAL ASSEMBLY
............................................................................
Respondent
Heard on : 7 August 2012
Decided on : 9 October 2012
JUDGMENT
MOGOENG CJ (Moseneke DCJ,
Cameron J, Froneman J, Khampepe J, Nkabinde J, Skweyiya J and Van der
Westhuizen J concurring):
Introduction
The question that arises from
this application for leave to appeal is whether the National
Assembly may regulate its business
in a manner that may deny its
members the opportunity of introducing a Bill in the Assembly, in
terms of section 73(2) of the
Constitution.
1
The matter first served before
Allie J,
2
in the Western Cape High Court,
Cape Town (High Court). It was a challenge to the constitutional
validity of those Rules of the
National Assembly
3
(Rules) that require a member
of the Assembly to secure “permission” from it before
she may “introduce”
a Bill in terms of section 73(2).
That application was dismissed on the ground that the impugned Rules
are not in breach of a
member’s constitutional power to
introduce a Bill. It is that unfavourable outcome that moved the
applicant to launch the
application.
The relief sought then and now
is essentially—
(a) a
decision
reviewing
and setting aside the refusal by the Speaker of the National Assembly
(Speaker) to introduce the applicant’s proposed
National Credit
Act Amendment Bill in the Assembly;
(b) an
order
directing the Speaker to have the applicant’s Bill introduced
in the Assembly in terms of the same procedures and under
the same
conditions that apply to a Cabinet member or a Deputy Minister; and
(c) a declarator that any
Rule
which prevents a member of the Assembly from introducing a Bill in
the Assembly is constitutionally invalid.
4
Parties
The applicant is Mr Mario
Gaspare Oriani-Ambrosini, a member of the Inkatha Freedom Party,
5
who is also a member of the
National Assembly.
6
The respondent is Mr Maxwell
Vuyisile Sisulu, MP, who is cited in his capacity as the Speaker.
Background
A brief account of the Rules
will help put the constitutional challenge in a proper context. The
Rules provide that a member of
the National Assembly may introduce a
Bill in the Assembly, in accordance with section 73(2), only if the
Assembly has given
her “permission” to initiate
legislation.
7
For the purpose of obtaining
that permission, she must submit a memorandum to the Speaker setting
out the particulars of the proposed
legislation; explaining its
objects; and stating whether it will have financial implications for
the State.
8
The Speaker must then refer the
memorandum to the Committee on
Private
Members’ Legislative Proposals and Special Petitions (Private
Members’ Committee)
,
which may in turn consult a portfolio committee that deals with the
subject matter of the proposal. After considering the memorandum
the
Private Members’ Committee then recommends to the Assembly
that permission to proceed with the legislation either be
given or
refused. A positive recommendation may be accompanied by an
indication of the proposal’s desirability, a recommendation

that the proposal be approved by the Assembly in principle, or that
permission be given subject to certain conditions.
9
The Private Members’
Committee must table a member’s memorandum and its
recommendation, along with the views of a
portfolio committee on the
financial or other implications of the proposal, in the Assembly.
10
The Speaker then places these
documents on the Order Paper for decision.
11
If the Assembly votes to give
permission for the proposal to be proceeded with,
12
the member is free to prepare a
draft Bill in the manner and form prescribed by the Rules.
13
Why and how aspects of these
Rules led to the application before us follows in the next three
paragraphs.
The applicant became a member
of the National Assembly on 6 May 2009. He had several concerns
about the procedures of the Assembly,
in particular the requirement
that a member needs the Assembly’s permission before she may
introduce a Bill in the Assembly.
In his view, any Rule that
stipulates permission as a requirement in this regard is
constitutionally invalid.
To have this matter addressed,
the applicant directed complaints to the Speaker in a letter dated
15 May 2009. The response
was that the applicant was mistaken
because the Rules are in conformity with the Constitution. On 10
June 2009, the applicant
raised a point of order on this matter
during a sitting of the National Assembly. This was rejected by the
Speaker. During the
course of the next few months, the applicant
wrote more letters to the Speaker and one to the chairperson of the
Sub-Committee
on the Review of the National Assembly Rules. None of
these letters drew a response.
Having not achieved a
satisfactory outcome through the internal procedures of the National
Assembly, the applicant challenged
the constitutional validity of
the Rules in the High Court.
In the High Court
The High Court held that
individual members do not have the power to initiate or prepare
legislation, as these powers vest in
the Assembly. Further, it held
that the institution vested with the authority to permit or refuse
the further progression of
an individual member’s legislative
proposal, to the stage of being introduced as a Bill, is the
National Assembly, not
the Private Members’ Committee. The
latter makes non-binding recommendations to the Assembly only. It
held that the possibility
of a legislative proposal not being
allowed by the majority party in the Assembly to go beyond the
initiation or preparation
stage is not inimical to democracy. In
this regard, the Court cited the decisions of this Court
14
and the Supreme Court of
Appeal,
15
which upheld the
constitutionality of majority decision-making as a legitimate
democratic principle.
As a result, the application
was dismissed with costs. This was followed by an unsuccessful
application for leave to appeal to
the Supreme Court of Appeal.
16
The applicant then approached
this Court for leave to appeal.
Issues
These are the preliminary
issues:
Condonation for the late filing
of the Speaker’s notice of opposition and answering affidavit.
Leave to file a replying
affidavit.
Condonation for the late filing
of the record.
Condonation for the late filing
of the applicant’s written submissions.
Leave to appeal.
The central issue is whether it
is open to the National Assembly, in the exercise of its power in
terms of section 57 of the Constitution,
17
to impose a permission
requirement that may prevent a member of the National Assembly from
exercising her power to introduce a
Bill in terms of section 73(2)
of the Constitution. To decide this issue, these matters must be
considered:
Whether the power created by
section 55(1)(b) of the Constitution also vests in individual
members of the National Assembly.
The scope and meaning of
section 73(2) of the Constitution.
The scope and meaning of
section 57 of the Constitution.
Remedy.
Condonation: notice to oppose
and answering affidavit
The Speaker filed his notice of
opposition and an answering affidavit after the dies had expired.
The delay was short and the
applicant concedes that condonation is
in the interests of justice. Condonation should, therefore, be
granted.
Leave to file a replying
affidavit
The Rules of this Court make no
provision for a replying affidavit to be filed. Yet the applicant
seeks leave to do so. He submits
that his affidavit will clarify
certain issues and obviate a consideration of irrelevant matters and
he is correct. There is
no opposition and the affidavit will not
prejudice the Speaker. It is in the interests of justice to grant
leave and I am inclined
to do so.
Condonation: record
On 4 May 2012, this Court
issued directions in terms of which the applicant was required to
file
the relevant portions of the record in the
High Court
on or before 31 May 2012.
He failed to do so and only filed the record along with an
application for condonation on
4 June 2012.
The delay is relatively short
and the Speaker has suffered no prejudice since the applicant
delivered a copy of the record to
the Speaker’s attorneys on
31 May 2012. I am inclined, therefore, to grant condonation.
Condonation: written
submissions
The directions also required of
the applicant to file his written submissions on or before 15 June
2012. Again, the applicant
did not file his submissions on time. He
only filed them, along with an application for condonation, on 19
June 2012. The principal
explanation tendered is that unforeseen
circumstances were the cause of the failure to file timeously. The
applicant delivered
a copy of the submissions to the Speaker’s
attorneys on 15 June 2012. The delay is relatively short and the
Speaker suffered
no prejudice because he received the submissions on
time. Condonation should thus be granted.
Leave to appeal
This matter raises important
constitutional issues. They concern the power to introduce a Bill in
the National Assembly,
18
the power to initiate or
prepare legislation,
19
the interpretation of the
National Assembly’s power to make rules in terms of which its
business is governed,
20
and the values that underpin
our democracy.
21
The National Assembly, its
individual members and the public have a keen interest in the
guidance to be provided by this Court
on the constitutional validity
of elements of the existing regulatory framework of the Assembly.
Reasonable prospects of success
also exist. The interests of justice
therefore dictate that leave be granted to appeal to this Court.
Submissions
The applicant grounds his
challenge on the values of democracy, transparency, accountability
and openness, as well as the importance
of protecting individual
members of minority parties in the National Assembly. These values
are, in his view, undermined by the
permission requirement. This, he
says, has the effect of stifling debate on important issues that a
member of the Assembly may
wish to have the Assembly consider
properly, by first introducing a Bill.
He argues that section
55(1)(b),
22
which confers the power to
initiate or prepare legislation, forms part of several provisions of
the Constitution
that
provide for the composition and functions of the Assembly. He
contends, however, that the
process
by which this “generally accorded legislative power is
exercised is described elsewhere in the Constitution.”
In this
regard, he points to section 73(2), which he argues vests in a
member of the Assembly the power to introduce “[a]ny
Bill”
23
in the Assembly. And this power
is, in his view, negated by the permission requirement in the Rules.
Further, the applicant accepts
that section 57 of the Constitution
gives the Assembly the power to determine and regulate its own
proceedings and procedures.
He contends, however, that this does not
entitle the Assembly to impose substantive limitations on the
exercise of the constitutional
powers of its members, or make their
exercise of those powers subject to the discretion of another body.
24
Rather, the section
contemplates rules that are procedural in nature.
The Speaker concedes that
members are entitled to introduce a Bill in the Assembly in terms of
section 73(2). But, he submits
that they are not entitled to
initiate or prepare legislation, in terms of either section 55(1)(b)
or section 73(2), on their
own. This is, in his view, a collective
power that vests in the Assembly and not individual members.
25
It is the exercise of this
power to which the Rules correctly attach the permission
requirement. The Speaker argues that it is
open to the Assembly to
impose a permission requirement on members who wish to exercise the
power of the Assembly to initiate
or prepare legislation, precisely
because it is only the Assembly, as the sole repository of the
power, which may delegate it.
He also contends that majority
decision-making by the National Assembly is a recognised
constitutional principle, which is consistent
with section 53 of the
Constitution,
26
and that the process provided
for in the Rules involves the participation of minority parties and
is therefore consistent with
section 57(2)(b) of the Constitution.
The applicant seeks to refute
the Speaker’s construction of section 73(2) on the basis that
it trivialises the importance
and role of the power to introduce
Bills in the Assembly and impermissibly relegates it to the level of
merely listing those
persons who may exercise it. This, he says,
renders the section all but nugatory.
Initiation or preparation of
legislation
i. Textual meaning
As I accord meaning to section
55(1)(b), I keep in mind the established principle of interpretation
that where the same words
are used in the same statute, they should
be given the same meaning, unless the context indicates otherwise.
27
The converse is also true.
The power of the National
Assembly to initiate or prepare legislation is set out in section
55(1) in these terms:
“
In
exercising its legislative power, the National Assembly may
—
(a) consider, pass, amend or
reject any legislation before the Assembly; and
(b) initiate or prepare
legislation, except money Bills.”
The
Shorter
Oxford English Dictionary
defines
the word “initiate” as: “Begin, introduce, set
going, originate.”
28
It defines “prepare”
as: “Put beforehand into a suitable condition for some action;
bring into a proper state
for use; get or make ready; fit out,
equip.”
29
Initiation, on the one hand,
contemplates the making of a decision or taking of action by an
individual, which kick-starts the
process of having legislation
passed by the Assembly. It implies the conceptualisation,
envisioning and incubation of legislation.
Preparation, on the
other, envisages progressively working on a legislative proposal to
bring it into a suitable state for some
future action; the
concretisation or giving shape and life to a legislative idea. This
is the process of drafting legislation,
for the purpose of getting
it ready to be placed before the Assembly as a Bill, in terms of
section 73(2).
30
On its face, section 55(1)(b)
deals with nothing but the collective exercise of power by the
National Assembly. So construed,
the authority to “initiate or
prepare legislation” would repose exclusively in the Assembly.
Section 55(1)(b) is
capable of being interpreted as vesting this
power in the Assembly as a collective, or in members of the
Assembly, acting as
individuals or as part of larger groups, be they
committees, political parties or otherwise. This is to be contrasted
with the
language of section 85(2), which provides in relevant part:
“
The
President exercises the executive authority, together with the other
members of the Cabinet, by—
. . .
(d) preparing and initiating
legislation”.
As the language indicates, the
executive power to initiate and prepare legislation is not one that
is to be exercised by a single
member of Cabinet. It is a power
vested in the President “together with” other members of
Cabinet and is, therefore,
a responsibility to be discharged
collectively. This means that although a Cabinet member is in terms
of section 73(2) entitled
to introduce a Bill in the Assembly, she
does not have the individual power to initiate or prepare
legislation and introduce
a Bill without prior consultation with and
approval of Cabinet.
31
In order for a legislative
proposal to be shaped into a Bill that may be introduced, it is
imperative that Cabinet be consulted
for the endorsement of the
proposal, at some stage. Had it been the purpose of the Constitution
to confer an exclusively collective
power through section 55(1)(b),
it could have indicated that preference explicitly, in the terms
similar to those of section
85(2)(d).
A textual analysis of the words
“initiate or prepare”, within the context of section
55(1)(b), suggests that this
is a power that may also be exercised
by an individual member. But, this interpretation is not necessarily
conclusive. It must
be considered in a broader context.
ii. Nature of the section
55(1)(b) power and the workings of the Assembly
Section 53(1) of the
Constitution puts the section 55(1)(b) power in a proper
perspective:
“
Except where the
Constitution provides otherwise
—
(a) a majority of the members of
the National Assembly must be present before a vote may be taken on a
Bill or an amendment to a
Bill;
(b) at least one third of the
members must be present before a vote may be taken on any other
question before the Assembly; and
(c) all questions before the
Assembly are decided by a majority of the votes cast.”
This section regulates the
decision-making process of the National Assembly. Subparagraphs (a)
and (b) provide for votes on a
“Bill or an amendment to a
Bill” and votes on “any other question before the
Assembly”. Except where
the Constitution provides otherwise, a
majority of votes will decide any question before the Assembly.
Thus, a Bill that is before
the Assembly in terms of section
55(1)(a) requires a majority vote for it to be passed into law. But,
the amendment of sections
1 and 74(1) of the Constitution may, for
example, only be effected by a supporting vote of at least
75 per cent of
its members.
32
Other sections of the
Constitution that require a vote are those that provide for the
adoption of a resolution;
33
the determination of the time
and duration of the sittings of the Assembly;
34
the election of a Speaker and a
Deputy Speaker;
35
the election of officers to
assist the Speaker;
36
the removal of a Speaker;
37
and the Assembly’s power
to determine its processes through the making of rules.
38
The language used in all these
sections contemplates the making of a decision in relation to an
unresolved question. Naturally,
because members may disagree on
whether laws should be passed or amended, Speakers elected or
removed, rules made or resolutions
adopted, there is a need for some
voting mechanism to resolve these questions. This is the purpose
served by section 53. Except
where the Constitution provides
otherwise, section 53 regulates the manner in which members of the
Assembly exercise power collectively,
which is by making decisions
through a voting process.
Section 55(1)(b) does not,
however, use language that can only be associated with
decision-making. It does not use words like
“resolution”,
“determine” or “decide”, to indicate that
the Assembly must always vote in
terms of section 53 before
legislation may be initiated or prepared. It simply says that one of
the powers of the National Assembly
is to “initiate or prepare
legislation”. This ought to come as no surprise because
neither initiation nor preparation
yields a definitive outcome. It
does not have any substantial consequence and nothing needs to be
done as a result of the exercise
of this power. No decision
necessarily has to be taken in relation to or has to flow from the
initiation or preparation of legislation.
For this reason, the
National Assembly does not necessarily have to act as a collective
in this regard.
Ordinarily, it takes only an
individual to imagine the need for a particular legislative
amendment or intervention. Whether she
would also prepare or flesh
out the idea alone, or with the help of others as the word “or”
between “initiate”
and “prepare” suggests,
is another option that would be open to her. More importantly, the
very nature of initiation
or preparation seems to defy the notion
that this power always has to be exercised collectively. Practically
speaking, these
roles will naturally be played by individuals or
groups of individuals.
Further, this construction
follows from a proper understanding of the term “National
Assembly”. Section 46(1) of the
Constitution provides that
“[t]he National Assembly consists of no fewer than 350 and no
more than 400 women and men”.
This is much like the term
“Parliament”, which “consists” of the
National Assembly and the National Council
of Provinces;
39
and the term National Council
of Provinces, which is “composed” of a single delegation
from each Province.
40
The term “National
Assembly”, when used in the context of section 55(1), is thus
meant only to identify the elected
members by whom it is
constituted. It is these members who, in terms of section 55(1)(b),
have the power to initiate or prepare
legislation. This must,
however, not be understood to mean that a collective body may never
exercise this power through its individual
members, leadership or
structures that it may have authorised to act on its behalf. It is
only an added indication that the power
to initiate or prepare
legislation may not be exclusively institutional.
What this resolves itself to is
that the Assembly as a collective may, for example, vote only once,
to put in place a mechanism
that would guide or regulate its
exercise of the power to initiate or prepare. This it may agree to
do through identified committees
or members. This also explains why
it would be unduly cumbersome for the Assembly to vote on the
initiation or preparation of
each legislative proposal when it could
instead be left to committees or individuals, like the Speaker, to
act on its behalf.
Thereafter, its business in this connection would
be disposed of in line with that agreed structure or set of guiding
principles.
No rule created by the Assembly may preclude individuals
from initiating and preparing legislation, which the Constitution
gives
them power to do, and is itself subject to the requirements of
section 57, to which I return later.
After considering the textual
meaning, a purposive interpretation is a decisive aid in the
resolution of this issue.
iii. Purposive interpretation
Ours is a constitutional
democracy that is designed to ensure that the voiceless are heard,
and that even those of us who would,
given a choice, have preferred
not to entertain the views of the marginalised or the powerless
minorities, listen.
41
One must have regard to the
broader scheme of the Constitution, Chapter 4 of the Constitution,
and the purpose of section 55(1)(b)
itself to appreciate whether a
member of the Assembly has the power to initiate or prepare
legislation. This Chapter deals with
Parliament, its composition,
powers and how it ought to function. It affords even an individual
member of the National Assembly
the possibility to introduce a Bill
in the Assembly. This power extends to all and must not, therefore,
inadvertently or deliberately,
be rendered hollow and
inconsequential for those individual members of the Assembly who may
wish to exercise it.
The purpose and ambit of
section 55(1)(b) should thus be considered bearing in mind the need
to breathe life into the foregoing
constitutional vision.
Preliminary work needs to be done before a Bill could be ready for
introduction in the Assembly. As will
be seen later in this
judgment, section 73(2) is silent on how a Bill comes into being and
who has the power to engineer and
mould a legislative proposal into
a Bill. Section 55(1)(b), however, provides that the National
Assembly has the legislative
power to initiate or prepare
legislation. The question is whether it accords with the purpose of
section 55(1)(b) to confine
the exercise of this power to the
collective membership of the Assembly or its duly authorised
structures or functionaries.
A construction that also
recognises an individual competence to initiate or prepare
legislation not only accords with the textual
meaning of the section
but also with the principles of multi-party democracy,
42
representative and
participatory democracy,
43
responsiveness, accountability
44
and openness.
45
The very nature and composition
of the National Assembly renders it preeminently suited to fulfill
the role of a national forum
at which even individual members may
initiate, prepare and present legislative proposals to be considered
publicly by all the
representatives of the people present in the
Assembly.
46
This Court has previously
discussed the nature of some of the constitutional principles that
undergird our democracy.
47
It has also paid particular
attention to the deliberative nature of the National Assembly and
stressed the importance of deliberation
in the legislative process.
48
Elaborating on this and the
kind of democracy we have opted for, Sachs J said:
“
[T]he
Constitution does not envisage a mathematical form of democracy,
where the winner takes all until the next vote-counting exercise

occurs. Rather, it contemplates a pluralistic democracy where
continuous respect is given to the rights of all to be heard and
have
their views considered. . . .
The open and deliberative nature
of the process goes further than providing a dignified and meaningful
role for all participants.
It is calculated to produce better
outcomes through subjecting laws and governmental action to the test
of critical debate, rather
than basing them on unilateral
decision-making. It should be underlined that the responsibility for
serious and meaningful deliberation
and decision-making rests not
only on the majority, but on minority groups as well. In the end, the
endeavours of both majority
and minority parties should be directed
not towards exercising (or blocking the exercise) of power for its
own sake, but at achieving
a just society where, in the words of the
Preamble, ‘South Africa belongs to all who live in it . . .’.”
49
The “rights of all to be
heard and have their views considered”, within the context of
the legislative process, dictate
that individual members ought to
have the power to initiate or prepare legislation. In this way, an
opportunity would be availed
to them to promote their legislative
proposals so that they could be considered properly. It is a
collective responsibility of
both the majority and minority parties
and their individual members to deliberate critically and seriously
on legislative proposals
and other matters of national importance.
And this should also apply to legislative proposals initiated or
prepared by individual
members. This approach would give meaning to
and enrich our representative and participatory democracy, and will
probably yield
results that are in the best interests of all our
people.
The need to recognise the
inherent value of representative and participatory democracy and
dissenting opinions was largely inspired
by this nation’s evil
past and our unwavering commitment to make a decisive break from
that dark history.
50
South Africa’s shameful
history is one marked by authoritarianism, not only of the legal and
physical kind, but also of
an intellectual, ideological and
philosophical nature. The apartheid regime sought to dominate all
facets of human life. It was
determined to suppress dissenting
views, with the aim of imposing hegemonic control over thoughts and
conduct, for the preservation
of institutionalised injustice. It is
this unjust system that South Africans, through their Constitution,
so decisively seek
to reverse by ensuring that this country fully
belongs to all those who live in it. And it is in this context that
the section
55(1)(b) power to initiate or prepare legislation must
be understood.
51
This purposive interpretation
of section 55(1)(b) does not undermine the power of the National
Assembly to determine how best
to run its affairs, nor does it work
against the significance of being the majority party in the
Assembly. It also does not disregard
the views of other minority
parties that may not be interested in, or supportive of, an
individual member’s legislative
proposal. This is so because,
even after a member would have caused the Assembly to reflect
properly on the potential benefits
of her proposal to the nation,
the majority voice would still prevail.
52
Section 55(1)(b) thus empowers
an individual member, even from a minority party, to sponsor or
pilot a legislative proposal as
her own. It is always open to her,
though, to seek the National Assembly’s adoption of her
initiatives as its own. This
meaning of section 55(1)(b) finds
support in its textual and purposive interpretation, the nature of
the power conferred by section
55(1)(b), and the manner in which the
National Assembly operates. This then leads me to the interplay
between the initiation
and preparation powers and the power to
introduce a Bill.
Scope and meaning of section
73(2)
Section 73 of the Constitution
provides, in relevant part:
“
(1)
Any Bill may be introduced in the National Assembly.
(2) Only a Cabinet member or a
Deputy Minister, or a member or committee of the National Assembly,
may introduce a Bill in the Assembly,
but only the Cabinet member
responsible for national financial matters may introduce the
following Bills in the Assembly:
(a) a money Bill; or
(b) a Bill which provides for
legislation envisaged in section 214.”
The
Shorter
Oxford English Dictionary
defines
the word “introduce” as: “Bring, put, or lead into
or in”.
53
It may also be construed to
mean “announce”
54
or “[b]ring to the notice
or cognizance of a person or group; bring a bill or proposal before
Parliament”.
55
Bills are introduced in the
National Assembly as a precursor to the process that culminates in
the possible passing of legislation,
by way of voting. What section
73(2) seeks to achieve is to identify those who may carry out the
function of introducing a Bill.
And a member of the National
Assembly is one of them.
The applicant contends that the
power to introduce a Bill in the Assembly should be understood to
include such preparatory work
as might be necessary to embark upon
before the proposed legislation takes the shape of what qualifies to
be described as a Bill.
I think not. It is not the purpose of the
Constitution to give the word “introduce” a meaning that
is so broad as
to accommodate the initiation or preparation process
that must ordinarily precede the unveiling of the Bill in the
Assembly.
Had this been so, provision would not have been made in
sections 55 and 85 for the power to handle these preliminary stages
of
the legislative process, by even some of those functionaries who
are already empowered by section 73(2) to introduce a Bill.
56
Besides, “initiate”
or “prepare” in section 55(1)(b) should be given the
same meaning as in section 85(2)(d)
and “introduce” in
section 73(2) should be construed differently.
57
As noted by this Court in a
different context, “[t]hese are not idle words randomly
inserted into the Constitution. They
must be given meaning.”
58
Section 73(2) provides for a
more advanced stage in the law-making process, whereas sections
55(1)(b) and 85(2)(d) provide for
the groundwork that must be done
prior to the exercise of the power to introduce a Bill in the
National Assembly. It is only
after a legislative concept has been
given expression to that it culminates in a Bill that can then be
introduced.
The power of an individual
member of the Assembly to introduce a Bill, particularly those from
the ranks of opposition parties,
is more than ceremonial in its
significance. It gives them the opportunity to go beyond merely
opposing, to proposing constructively,
in a national forum, another
way of doing things. It serves as an avenue for articulating
positions, through public debate and
consideration of alternative
proposals, on how a particular issue can be addressed or regulated
differently and arguably better.
59
This noble objective finds
further support from the consequences that flow from the
introduction of a Bill. Once introduced, a
Bill
forms part of the permanent and searchable records of the Assembly,
like
the parliamentary Order Paper, the Announcements,
Tablings and Committee Reports, and Hansard
.
This material can then be accessed by members of the public, to do
with as they think fit. Also, once introduced, a Bill is
published
in the official
Gazette
and goes to the relevant portfolio committee, with expertise on the
subject matter of the Bill, for deliberation. This all promotes
the
values of participatory democracy, openness, accountability and
transparency.
Even if a
Bill does not result in an Act of Parliament, the power to introduce
it is vital to the type of democracy envisaged
by our Constitution.
This is so because it facilitates meaningful deliberations on the
significance and potential benefits of the proposed legislation.
It
is therefore an important power and should not be restricted without
good reason.
The Assembly’s power to
make rules
The heading of section 57 of
the Constitution reads: “Internal arrangements, proceedings
and procedures of National Assembly.”
In relevant part, the
section provides:
“
(1)
The National Assembly may
—
(a) determine and control its
internal arrangements, proceedings and procedures; and
(b) make rules and orders
concerning its business, with due regard to representative and
participatory democracy, accountability,
transparency and public
involvement.
(2) The
rules and orders of the National Assembly must provide for
—
(a)
the
establishment, composition, powers, functions, procedures and
duration of its committees;
(b) the participation in the
proceedings of the Assembly and its committees of minority parties
represented in the Assembly, in
a manner consistent with democracy”.
The words “arrangements,
proceedings and procedures” indicate that the Assembly’s
power to make rules is limited
to the regulation of process and
form, as opposed to content and substance.
Of further importance is that
the power of the National Assembly to “make rules . .
. concerning its business”
must be exercised “with due
regard to representative and participatory democracy,
accountability, transparency and public
involvement.”
60
Equally significant is the need
for the rules to cater for “the participation in the
proceedings of the Assembly and its
committees of minority parties
represented in the Assembly, in a manner consistent with democracy”.
The rules may only
provide for the initiation or preparation of
legislation and the introduction of a Bill in a manner that
facilitates the exercise
of these powers by individual members of
the Assembly. They must pave the way and smooth the path for this
purpose.
61
Comparable democracies have
imposed less drastic restrictions on an individual member’s
power to marshal legislation through
Parliament.
62
There are exceptions of
course.
63
But it is apparent from an
overview of these jurisdictions that greater freedom to initiate and
introduce legislation is the norm.
64
By its very nature,
representative and participatory democracy requires that a genuine
platform be created, even for members of
minority parties in the
Assembly, to give practical expression to the aspirations of their
constituencies by playing a more meaningful
role in the law-making
processes.
65
One way of achieving that
objective would be by ensuring that minority parties are properly
represented in committees and that
they are allocated some time to
present their views on any matter of importance that serves before
the Assembly. But this is
not all.
Within the context of a
law-making process, transparency would be enhanced optimally by
rules that generally allow for a legislative
proposal to be debated
properly and in a manner that is open to the public,
66
before its fate is decided.
Further, public participation, so as to cultivate an “active,
informed and engaged citizenry”,
67
is also facilitated by rules
that allow even minority party members, who are not ordinarily
represented in Cabinet, to initiate
or prepare legislation and
introduce a Bill. This is because the public can only properly hold
their elected representatives
accountable if they are sufficiently
informed of the relative merits of issues before the Assembly. This
is achievable by, amongst
other things, interpreting section 57 as
empowering the Assembly to make rules that do not constitute an
inadvertent deployment
of invincible giants in a member’s path
to exercising her section 55(1)(b) or section 73(2) power.
Given the centrality of
transparency, public involvement and representative and
participatory democracy to the Assembly’s
power to make rules,
it
would
be inappropriate to interpret section 57 in a way that allows the
Assembly to make rules that undermine or vitiate the power
of an
individual member to initiate or prepare legislation and introduce a
Bill.
68
The Constitution,
therefore, does not entitle the Assembly to impose substantive or
content-based limitations on the exercise
of the constitutional
powers of its members, but rather contemplates rules that are
procedural in nature.
Validity of the Rules
The validity of the Rules
depends on whether they recognise and facilitate the exercise of the
individual member’s powers
in sections 55(1)(b) and 73(2).
Alternatively, whether they create a high risk of those powers being
paralysed by placing the
section 55(1)(b) power exclusively in the
hands of the National Assembly, functioning as a collective body,
thus inhibiting the
exercise of the section 73(2) power by
extension.
The notice of motion filed in
this Court singles out certain Rules for attack.
69
Central to the constitutional
challenge is the permission requirement they impose on individual
members of the Assembly seeking
to initiate, prepare or introduce
legislation. Potentially, the permission requirement will negate the
exercise of the power
to initiate, prepare and introduce legislation
in the National Assembly. And this does not bode well for our
democracy. Common
sense suggests that any majority party in the
Assembly is likely to support its own legislative projects and not
those of minority
parties or any individual member.
70
For this reason, a permission
requirement boils down to a mechanism that is inescapably prone to
denying individual members and
minority parties the power to
initiate, prepare and introduce legislation, however well-meaning
those who drafted the Rules might
have been.
Based on the discussion above,
any Rule that empowers the National Assembly to impose the
permission requirement, or reinforces
this requirement, would fly in
the face of the meaning and purpose of section 57, read with
sections 55(1)(b) and 73(2). It would
therefore be constitutionally
invalid, to the extent of that inconsistency.
i. Failure to attack Rules
235A and 243(3)
A legitimate concern does arise
from the manner in which the applicant pleaded his case. Although he
has always been concerned
with removing the hindrances to the free
exercise of his power to introduce a Bill in the Assembly, he does
not in his pleadings
deal with all the Rules that concern the
introduction of a Bill. He does not challenge the constitutionality
of Rules 235A
71
and 243(3)
72
directly, despite their
relevance to the matter.
Rules 235A and 243(3) are
inextricably linked to and reinforce the permission requirement in
relation to the introduction of a
Bill. Their omission might
arguably be a critical deficiency in the challenge, which should
result in the dismissal of the application.
Several factors,
however, militate against that approach and outcome.
The applicant has always
hoisted the permission requirement high, as an impediment to the
exercise of his power to introduce a
Bill. This requirement is thus
a dominant feature in the case he made out, and is central to the
determination of the issues.
A challenge to the Rules that regulate
the initiation and preparation of legislation was launched on the
apparent understanding
that they are a critical and foundational
step to the exercise of the power to introduce a Bill. For this
reason, the applicant’s
approach to the matter has been to
clear all potential barriers to the enjoyment of the power vested in
him by section 73(2).
Further
, the Speaker has,
to his credit, correctly conceded that if the permission requirement
is declared unconstitutional, Rule 243(3)
would also have to be
declared unconstitutional. This should extend to Rule 235A, although
it is an amendment that was only effected
after the application was
brought in the High Court.
Rule 230 sheds light on
this issue and reads:
“
(1)
The
Assembly initiates legislation through its committee
s
and
members acting with the permission of the Assembly in terms of these
Rules
.
(2)
Any
committee or member of the Assembly may in terms of
section
73(2)
of the Constitution introduce a
B
ill
in the Assembly that has been initiated in terms of Subrule (1).”
Rule 230, which has also been
challenged by the applicant,
is
a vital factor in the determination of the issue
.
Its content captures the thrust of the applicant’s attack on
the constitutional validity of all the other Rules. Subrule
(1)
stipulates that a member will only initiate legislation “acting
with the permission of the Assembly in terms of these
Rules.”
More importantly, Rule 230(2) puts beyond doubt the inextricable
connection between the exercise of the power to
introduce a Bill in
terms of section 73(2), and the member’s incapacity to
initiate legislation without the Assembly’s
permission. Rule
230 is thus at the intersection of the interplay between initiation
and preparation, on the one hand, and introduction,
on the other.
I am satisfied therefore that
the Rules relating to the introduction of a Bill have been
cumulatively covered by: (i) the constitutional
challenge to the
permission requirement; (ii) the specific mention of section
73(2) in the applicant’s papers; (iii)
the inseparability of
the chain of events from initiation and preparation of legislation
to the introduction of a Bill; (iv)
the parties’ attitudes and
submissions; and (v) the very nature and scope of Rule 230 and its
substantial connectedness
to Rules 235A and 243(3).
ii. The impugned Rules
Rule 230 distinguishes
between, on the one hand, legislation that is initiated through the
committees and members of the Assembly
and, on the other, the
introduction of a Bill by a committee or a member of the Assembly.
The Rule, therefore, recognises the
power of members of the Assembly
to initiate legislation, but subjects the exercise of this power to
the Assembly’s permission,
in line with the Speaker’s
contention that the Assembly is the sole repository of the power to
initiate or prepare legislation.
This permission requirement has
great potential to hamstring the exercise of that power. A reading
of Rule 230(2) suggests that
the requirement extends to the exercise
of the section 73(2) power. Those words that impose the permission
requirement on individual
members are therefore unconstitutional.
Other Rules that are
linked to and reinforce the permission requirement are 234, 235,
235A, 236, 237(1) and 243(3). It is necessary
to reproduce them in
full.
Rule 234 provides:
“
(1) An
Assembly member intending to introduce a Bill in the Assembly in an
individual capacity (other than as a Cabinet member or
Deputy
Minister) must, for the purpose of obtaining the Assembly’s
permission in terms of Rule 230(1), submit to the Speaker
a
memorandum which—
(a) sets out particulars of the
proposed legislation;
(b) explains the objects of the
proposed legislation; and
(c) states whether the proposed
legislation will have financial implications for the State and, if
so, whether those implications
may be a determining factor when the
proposed legislation is considered.
(2) The Speaker must table the
member’s memorandum in the Assembly.”
This
Rule stands to be declared constitutionally invalid in its entirety
because the portion that imposes the permission requirement
cannot be
severed from the Rule and still leave the rest capable of practical
implementation.
73
The
process provided for in this Rule is meant only to facilitate the
requirement that a member obtain permission before initiating
or
preparing legislation. This is elaborated on by Rules 235 and 236.
Rule 235 deals with the
referral of a legislative proposal to the Private Members’
Committee in these terms:
“
(1)
The Speaker must refer the member’s memorandum to the Committee
on Private Members’ Legislative Proposals and Special

Petitions.
(2) The Committee may consult
the portfolio committee within whose portfolio the proposal falls.
(3) After considering the
member’s memorandum, the Committee must recommend that
permission either be—
(a) given to the member to
proceed with the proposed legislation; or
(b) refused.
(4) If the Committee recommends
that the proposed legislation be proceeded with, it may—
(a) express itself on the
desirability of the principle of the proposal;
(b) recommend that the Assembly
approve the member’s proposal in principle; or
(c) recommend that permission be
given subject to conditions.”
This Rule is so intertwined with
the permission requirement that the deletion of only the reference to
the permission requirement
would denude it of any substance and
meaning. It is therefore unconstitutional in its entirety and
invalid.
Rule 235A lists the factors
that must be taken into account by the Private Members’
Committee when it considers a legislative
proposal:
“
(1)
The Committee will confine its consideration of the legislative
proposal to whether it—
(a) goes against the spirit,
purport and object of the Constitution;
(b) seeks to initiate
legislation beyond the legislative competence of the Assembly;
(c) duplicates existing
legislation or legislation awaiting consideration by the Assembly or
Council;
(d) pre-empts similar
legislation soon to be introduced by the national executive;
(e) will result in a money bill;
or
(f) is frivolous or vexatious.”
This Rule is to be severed only
because it is meaningless in the absence of Rule 235, to which it
owes its existence. This must,
however, not be understood as a
pronouncement on the constitutional validity of its substance, for
that issue does not arise.
Like Rule 235, Rule 236 has no
significance and meaning without its permission aspect. It is only
about the procedure to be followed
in order for the Assembly to
consider granting or refusing permission for a legislative proposal
to be proceeded with, and be
developed into a Bill. And it reads:
“
(1)
The Committee on Private Members’ Legislative Proposals and
Special Petitions must table in the Assembly the member’s

memorandum and the Committee’s recommendation, including any
views of a portfolio committee on the financial
or
other
implications of the proposal.
(2) The Speaker must place the
Committee’s report together with the member’s proposal on
the Order Paper for a decision.
(3) The Assembly may—
(a) give permission that the
proposal be proceeded with;
(b) refer the proposal back to
the Committee or the portfolio committee concerned for a further
report; or
(c) refuse permission.
(4) If the Assembly gives
permission that the proposal be proceeded with, it may, if it so
chooses—
(a) express itself on the
desirability of the proposal; or
(b) subject its permission to
conditions.”
This Rule is constitutionally
invalid in its entirety. It is an embodiment of the permission
requirement.
Rule 237(1) reinforces the
permission requirement created by Rule 230, by subjecting the
process through which a member prepares
a draft Bill to the prior
permission of the Assembly. The Rule subjects the power of
individual members to prepare a Bill, with
a view to introducing it
in the Assembly, to the Assembly’s veto. It provides:
“
If the
Assembly gives permission that the proposal be proceeded with, the
member concerned must—
(a) prepare a draft Bill, and a
memorandum setting out the objects of the Bill, in a form and style
that complies with any prescribed
requirements;
(b) consult the JTM for advice
on the classification of the Bill; and
(c) comply with Rule 241 or, if
it is a proposed constitutional amendment, with Rule 258.”
This is plainly
unconstitutional.
Rule 243(3) further reinforces
the permission requirement with regard to the introduction of a
Bill:
“
A Bill
introduced by an Assembly member or committee with the Assembly’s
permission in terms of Rule 236(3) or 238(3) must—
(a) be accompanied by a
statement to that effect; and
(b) contain on its cover page a
reference to the name of the member or the committee as the member or
committee introducing the
Bill.”
The offending words in this Rule
are unconstitutional only insofar as they apply to individual
members.
Remedy
The applicant essentially seeks
three orders from this Court. First, a review and setting aside of
the Speaker’s refusal
to introduce the applicant’s
proposed Bill. This is adequately addressed by the order declaring
the permission requirement
constitutionally invalid.
Second, an order compelling the
Speaker to process the applicant’s proposed Bill in the same
manner as a Cabinet member’s
Bill. A declaration of invalidity
in respect of those Rules that impede the exercise of the
applicant’s power to initiate,
prepare or introduce
legislation is sufficient to address the consequences of the
barriers imposed by the permission requirement.
In any event, a
mandamus would not be appropriate. The power to determine what
processes ought to be followed falls within the
constitutional
domain of the National Assembly. It is not for this Court to dictate
to the Assembly how it should go about regulating
its own business.
Third, the applicant seeks a
wide-ranging order, in terms of which various parts of the Rules are
declared unconstitutional.
74
The Rules that prescribe the
permission requirement have been found to be invalid.
Initially, the applicant also
sought to have those provisions of the Rules that require a
committee of the Assembly to obtain
permission from the Assembly
before initiating or preparing legislation declared
unconstitutional. It later became clear from
his written
submissions, oral argument and post-hearing submissions
75
that his case is now limited to
the permission requirement insofar as it applies to individual
members. The Rules that provide
for the permission requirement in
relation to Assembly committees will, therefore, be left intact.
At the request of this Court,
both the applicant and the Speaker filed further submissions dealing
with the remedy. The applicant
proposes some severances and
insertions in the impugned Rules. The Speaker, on the other hand,
proposes that a declaration of
invalidity of the impugned Rules be
suspended to allow the Assembly time to remedy the constitutional
defects and that, in the
interim, a prescribed procedure be followed
by members who wish to introduce a Bill. He also proposes that this
Court limit a
declaration of invalidity, to apply only
prospectively.
The four principal reasons
advanced by him in support of this relief are: (i) the need for a
pre-screening procedure to ensure
form and style compliance; (ii) to
avoid a waste of resources accompanied by the Assembly’s
obligation to reimburse expenses
incurred by members when preparing
Bills; (iii) to allow time to consult with the National Council of
Provinces on the necessary
amendments; and (iv) to ensure the
observance of the doctrine of separation of powers.
The form and style requirements
apply to the drafting of Bills, which is governed by Rule 237(1).
This Rule is unconstitutional
only to the extent that it subjects
the preparation phase of a member’s draft Bill to the
permission requirement. The rest
remains intact and the Speaker’s
concerns are therefore suitably accommodated. Further, the
Assembly’s obligation
to reimburse a member’s expenses
is governed by Rule 237(2),
76
which remains unaffected by our
findings.
Lastly, I
have alluded before to the need to observe the doctrine of
separation of powers by respecting the Assembly’s authority
to
make its own rules. However, some Rules and portions of others must
be excised from the Rules of the Assembly. And this is
so to the
extent that they leave individual members bereft of any possibility
to exercise their constitutional rights. There
is thus nothing
constitutionally appropriate to keep alive for any period of
suspension.
A
s stated earlier, I make no
pronouncement on the constitutional validity of any screening
mechanism. I deal only with the permission
requirement as provided
for in the impugned Rules.
The order of invalidity will
therefore not be suspended and no prospective order needs to be
made. Each case will be dealt with
on its own merits.
Whilst the applicant’s
proposals, together with the notice of motion, go some way to
remedying the constitutional defects
in the Rules, it appears that
they would trench on the Assembly’s constitutional domain
unduly, by effecting in some instances
changes that are not
necessary.
77
All we need to do is sever
those parts of the Rules that are inconsistent with the
Constitution, and leave it up to the Assembly
to decide how best to
deal with the rest of the issues. I will thus confine myself to
those proposals I consider helpful for
the determination of the
issues.
The test for severance was
articulated by this Court in
Coetzee
as follows:
“
Although
severability in the context of constitutional law may often require
special treatment, in the present case the trite test
can properly be
applied: if the good is not dependent on the bad and can be separated
from it, one gives effect to the good that
remains after the
separation if it still gives effect to the main objective of the
statute. The test has two parts: first, is it
possible to sever the
invalid provisions and second, if so, is what remains giving effect
to the purpose of the legislative scheme?”
78
(Footnote omitted.)
It is on the strength of these
principles that total or partial severance of the impugned Rules will
be done.
79
The matter is thus to be
resolved as set out below:
Rules 234, 235, 235A and 236
are to be declared constitutionally invalid and severed in their
entirety.
The underlined words in Rules
230(1), 230(2), 237(1) and 243(3) are to be declared
constitutionally invalid and severed from the
remainder of the
Rules:
Rule 230(1): “The
Assembly initiates legislation through its committees
and
members
acting with
the permission of the Assembly in terms of these Rules.”
Rule 230(2): “A
ny
committee
or
member
of
the Assembly may in terms of section 73(2) of the Constitution
introduce a Bill in the Assembly that has been initiated in
terms of
Subrule (1).”
Rule 237(1): “
If
the Assembly gives permission that the proposal be proceeded with,
the member concerned
must—”.
Rule 243(3):
“
A Bill
introduced by an Assembly
member
or
committee
with the Assembly’s permission in terms of Rule
236(3)
or
238(3)
must—
(a) be accompanied by a
statement to that effect; and
(b) contain on its cover page a
reference to the name of the
member or the
committee as the
member or
committee introducing the Bill.”
Costs
The parties agree that each
party should bear his costs in this Court. It was correctly conceded
during the course of oral argument
that the costs order granted
against the applicant in the High Court should be set aside.
Order
In the result, the following
order is made:
1. The applicant is granted
condonation for the late filing of the record and written
submissions.
2. The respondent is granted
condonation for the late filing of the notice of opposition and
answering affidavit.
3. Leave to file the replying
affidavit is granted.
4. Leave to appeal is granted.
5. The appeal is upheld and the
order of the Western Cape High Court, Cape Town is set aside.
6. Rules 234, 235, 235A and 236
of the Rules of the National Assembly are declared inconsistent with
the Constitution and are
severed in their entirety.
7. The words “and
members” are declared inconsistent with the Constitution and
are severed from Rule 230(1).
8. The words “or member”
are declared inconsistent with the Constitution and are severed from
Rule 230(2).
9. The words “If the
Assembly gives permission that the proposal be proceeded with,”
are declared inconsistent with
the Constitution and are severed from
Rule 237(1).
10. The words “member
or”, “236(3) or” and “member or the”
are declared inconsistent with
the Constitution and are severed from
Rule 243(3).
11. There is no order as to
costs.
JAFTA J (Yacoob J concurring):
I have read the judgment
prepared by the Chief Justice. I agree that condonation, leave to
file a replying affidavit and leave
to appeal should be granted.
But I respectfully disagree that the impugned Rules of the Assembly
are inconsistent with the
Constitution. The first reason that
drives me to a different conclusion is that the Rules targeted by
the applicant do not
regulate the exercise of the power to
introduce Bills in the National Assembly. The focus of these Rules
is the initiation
and preparation of legislation. Yet, the
complaint by the applicant is that these Rules prevent him from
introducing Bills
in the Assembly.
The second reason that leads
me to the conclusion I reach is that, properly construed, the
impugned Rules including Rule 243
do not prevent a member of the
Assembly, acting in an individual capacity, from introducing a
Bill. In other words, the Rules
are capable of an interpretation
that is consistent with the Constitution.
Factual background
The applicant became a member
of the Assembly in May 2009. Shortly after assuming office, he
“detected” an inconsistency
between the Rules of the
Assembly and the Constitution. He raised this concern in the
Assembly, requesting that certain Rules
be deleted on the basis
that they were unconstitutional. This request was declined. The
applicant submitted the request, together
with a legal opinion
obtained from senior counsel, to the Committee charged with
reviewing the Rules of the Assembly. His request
elicited no
response.
Having adopted the stance that
the Rules were unconstitutional, the applicant wrote to the Speaker
on 14 February 2010, attaching
a draft Bill to his letter. Because
this letter encapsulates the nub of the applicant’s complaint
it is necessary to
quote it in detail. In relevant part it reads:
“
I am
attaching for tabling the National Credit Act Amendment Bill of
2010, a Private Member’s Bill of mine (the Bill). In
terms of
section 73 of the Constitution I hereby table the Bill in the
National Assembly and/or its relevant Portfolio Committee,
the Trade
and Industry Portfolio Committee, and request you do so.
I further request that you
dis-apply and/or disregard these Rules of the National Assembly
which require the majority of the members
of Private Members’
Committee to give their permission on a proposal before such
proposal can be transformed into a Private
Member’s Bill to be
tabled in the National Assembly, including without limitation Rules
230(1) and 234 to 237. In fact,
such Rules are null and void because
they are unconstitutional, as more fully set out in Adv. Anton Katz,
SC’s legal opinion
previously sent to you and attached hereto
for easier reference.
. . .
The application of the
aforesaid unconstitutional, null and void Rules, with the consequent
non-application of the Constitution,
would cause the obliteration of
the Members’ constitutional right to introduce legislation in
the National Assembly unless
so authorised by a parliamentary
majority. This would undermine the very tenets of parliamentary
democracy placing the right
of legislative initiative in the
exclusive hands of the majority. I respectfully submit that you, as
the Speaker of the House,
bear the paramount responsibility to
protect the Members’ constitutionality rights in the House and
uphold the functioning
of parliamentary democracy. It is for this
reason that I am confident in the alternative confronting you, you
will not opt to
dis-apply and disregard the Constitution.”
I interpose the outline of the
facts by pointing out at this early stage that this letter reveals
an incorrect reading of the
relevant Rules. As will be evident
later, none of the Rules referred to in the letter empower the
“Private Members’
Committee to give their permission on
a proposal before such proposal can be transformed into a Private
Member’s Bill
to be tabled in the National Assembly”.
Nor do they place the power to initiate legislation in the
“exclusive hands
of the majority.”
The applicant’s request
for the introduction of his Bill too elicited no response. After
three months, the applicant launched
an application in the Western
Cape High Court. Although the notice of motion listed a number of
challenged Rules and specified
objectionable parts of those Rules,
80
a narrower case was pleaded in
the founding affidavit. It reads:
“
29. I now set out, in
brief, the scheme of the Rules and the basis of my submission that
they are unconstitutional insofar as
they prevent individual Members
from introducing Bills in the National Assembly.
30. I attach hereto as annexure
‘MGOA9’ a copy of the Rules. Large portions of the Rules
are irrelevant for the purposes
of this application; I deal with
what is relevant below.
31. In terms of Rules 234 to
237, a Member of the National Assembly may not introduce a Bill in
the National Assembly unless he
receives prior ‘permission’
to do so by the National Assembly itself, in which the ANC, as the
majority party, has
a preponderance of seats and votes.
32. This is obtained in the
following manner:
32.1. first, in terms of Rule
234(1), the Member seeking to introduce a Bill must produce a
memorandum on the Bill;
32.2. this memorandum goes to
the Committee on Private Members’ Legislative Proposals and
Special Petitions (‘the
Private Members’ Committee’)
in terms of Rule 235(1);
32.3. after various
consultations, the Private Members’ Committee must recommend
to the National Assembly that permission
to introduce the Bill
either be granted or refused;
32.4. the Assembly, in terms of
Rule 236, must consider the recommendation of the Private Members’
Committee and the memorandum
and either grant or refuse permission
to introduce the Bill; and
32.5. as a matter of constant
practice, Private Members’ Committee’s reports are
‘below the line’ in the
Order Paper of the National
Assembly, which means that they are not deliberated upon by the
Assembly and that effectively the
Private Members’ Committee
has final say on the matters before it.
33. This means that a Member of
the National Assembly may not introduce a Bill unless previously
authorized to do so by the Private
Members’ Committee, which
in turn is dominated by the majority party. However, Cabinet members
and Deputy Ministers are,
in terms of Rule 233, excepted from
complying with the above process.
34. The requirements listed
above expressly violate the right and indeed the duty, as contained
in section 73(2) of the Constitution,
of every member of the
National Assembly to introduce Bills in the National Assembly.
35. The only proviso contained
in 73(2) is that it is only the Cabinet member responsible for
financial matters who may introduce
money Bills. This clearly means
that a Member of the Assembly has an unfettered constitutional power
to introduce any other Bill.”
It is apparent from the
founding affidavit that Rules 121(1)(h) and 230(1) are excluded
from the challenge, even though the
notice of motion refers to
them. Instead, the attack is confined to Rules 234 to 237. The
applicant claims it is the requirements
laid down by the latter
Rules that “violate the right and indeed the duty, as
contained in section 73(2) of the Constitution,
of every member of
the National Assembly to introduce Bills”.
The relief sought by the
applicant was: (a) the review and setting aside of the Speaker’s
refusal to introduce the applicant’s
Bill in the Assembly;
(b) an order directing the Speaker to introduce the Bill on the
basis of procedures and conditions applicable
to Bills introduced
by Ministers and Deputy Ministers; and (c) an order declaring any
Rule of the Assembly, which prevents
members from introducing
Bills, to be unconstitutional and invalid. The application was
opposed by the Speaker.
After interpreting the
relevant Rules and sections of the Constitution, the High Court
held that the impugned Rules were not
inconsistent with the
Constitution and dismissed the application with costs.
In this Court
The singular issue in this
matter is whether the impugned Rules prevent members of the
Assembly from exercising the power to
introduce Bills in the
Assembly. It is not disputed that section 73(2) of the Constitution
confers upon every member of the
Assembly, the power to introduce
Bills. Although the section is quoted in the judgment of the Chief
Justice, for ease of reference
I quote it here. It reads:
“
Only
a Cabinet member or a Deputy Minister, or a member or committee of
the National Assembly, may introduce a Bill in the Assembly,
but
only the Cabinet member responsible for national financial matters
may introduce the following Bills in the Assembly:
a money Bill; or
a Bill which provides for
legislation envisaged in section 214.”
The section lists four
categories of persons who may introduce a Bill in the Assembly.
They are members of Cabinet, Deputy Ministers,
members of the
Assembly and committees of the Assembly. Members of Cabinet, who
are also members of the Assembly, may exercise
the power to
introduce Bills in two capacities, depending on the origins of the
Bill to be introduced. The Bills initiated
and prepared by Cabinet
may be introduced by members of Cabinet or Deputy Ministers only in
their capacity as Ministers or
Deputy Ministers. But the same
officials may introduce Bills initiated and prepared in the
Assembly, acting in their capacity
as members of the Assembly if
they are members. Members of the Assembly too may introduce Bills
acting on behalf of the Assembly
or in their individual capacity.
It seems that committees can only introduce Bills on behalf of the
Assembly.
The challenge
Before interpreting each of
the impugned Rules, it is necessary to determine the scope of the
present challenge. As stated earlier,
the challenge is that the
targeted Rules prevent members of the Assembly from introducing
Bills in the Assembly. The Rules
targeted in the founding affidavit
are Rules 234 to 237. The applicant contends that Rule 234(1)
obliges a member of the Assembly
to obtain permission from the
Assembly before she can introduce a Bill. As appears below when I
interpret the Rule, this construction
of Rule 234(1) by the
applicant is wrong.
Proceeding from this incorrect
premise, the applicant states that the Rule requires that a member
should forward a memorandum
to the Committee on Private Member’s
Legislative Proposals and Special Petitions in terms of Rule
235(1). He then says
that this Committee recommends to the Assembly
that permission to introduce the Bill be granted or refused. Again,
this is
an incorrect interpretation of Rule 235. This Rule does not
at all deal with the question of introducing Bills. Instead, as

appears below, it deals with the permission to initiate or prepare
legislation, something that falls outside the scope of the

complaint. The applicant does not complain that the Rules prevent
members from initiating and preparing legislation. His sole

complaint is that they prevent members of the Assembly from
introducing Bills.
The applicant continues on the
same premise to state that “the Assembly, in terms of Rule
236, must consider the recommendation
of the Private Members’
Committee and the memorandum and either grant or refuse permission
to introduce the Bill”.
Once more, this is incorrect. Rule
236 does not authorise the introduction of Bills but empowers the
Assembly to grant permission
that a proposal for preparing
legislation be taken forward.
Although the applicant claims
that “[i]n terms of Rules 234 to 237, a Member of the
National Assembly may not introduce
a Bill in the National Assembly
unless he receives prior ‘permission’ to do so by the
National Assembly itself,
in which the ANC, as the majority party,
has a preponderance of seats and votes”, the scheme he
outlines to underscore
the complaint omitted Rule 237. But this
Rule too does not deal with the issue of introducing Bills.
There is also a misalignment
between the relief sought in the notice of motion and the case
pleaded in the founding affidavit.
Apart from Rules 235 and 236,
the notice of motion targets specified words in Rules 121(1)(h),
230(1), 234(1), 237, 238 and
239, as well as entire subrules in
respect of some. The alternative remedy sought in the notice of
motion is to declare invalid
in Rule 233 the words “Cabinet
Member or Deputy Minister” to the extent that they do not
include the words “a
member of the Assembly and a committee”.
Also to declare invalid specified words in Rule 230(1) and Rules
234 to 240
in their entirety.
The case pleaded in the
founding affidavit does not refer to Rules 238 to 240 at all. Nor
does it refer to the Rules that regulate
the introduction of Bills
in the Assembly. A proper interpretation of the applicant’s
challenge must therefore be confined
to Rules 234 to 237 which form
the basis of the scheme postulated by the applicant in support of
the complaint that these Rules
prevent members of the Assembly from
introducing Bills without permission granted by the Assembly.
In a number of cases, this
Court has in the past cautioned litigants to plead constitutional
challenges concisely and accurately.
81
The particularity of a
constitutional challenge does not serve only the purpose of
informing parties to the particular litigation
of the issues they
are called upon to meet but also defines the issues the court is
expected to adjudicate. Declaring Rules
of the Assembly to be
invalid is a serious constitutional issue because it constitutes an
invasion by one arm of the State
into the terrain of another. As
the Chief Justice correctly points out, the Assembly is empowered
by the Constitution to determine
and control its internal
procedures and make rules concerning its business.
82
The intrusion by the Courts
into the sphere of Parliament is permissible only in instances
sanctioned by the Constitution.
83
Rules of the National Assembly
made in the exercise of a constitutional power may be declared
invalid only if it is established
that they are inconsistent with
the Constitution. However, the declaration of invalidity should
extend to the degree of the
inconsistency and no further. With this
in mind, I consider whether each of the impugned Rules is
inconsistent with section
73(2) of the Constitution.
Interpretation of impugned
Rules
Although Rule 230(1) is not
covered by the applicant’s founding affidavit, I am willing
to consider it because it is mentioned
in the notice of motion.
However, this does not mean that the applicant has accurately
pleaded his challenge in relation to
Rule 230(1). The Rule reads as
follows:
“
230.
Initiation
of legislation by Assembly
(1) The Assembly initiates
legislation through its committees and members acting with the
permission of the Assembly in terms
of these Rules.
(2) Any committee or member of
the Assembly may in terms of section 73(2) of the Constitution
introduce a bill in the Assembly
that has been initiated in terms of
Subrule (1).”
This Rule regulates the
exercise of the power to initiate and prepare legislation conferred
upon the National Assembly by section
55 of the Constitution.
84
As its heading indicates, the
Rule tells us how the Assembly exercises the power. It declares
that the Assembly initiates legislation
through its committees and
members who act with its permission. If a committee or member of
the Assembly sets about initiating
legislation on behalf of the
Assembly, it or she must have the Assembly’s permission. The
requirement for permission
applies in cases where a member acts on
behalf of the Assembly and not where members act in their
individual capacity. This
is apparent from Rule 230(1) which refers
to committees and members in the same context. It is not open to
committees of the
Assembly to exercise any power on their own
behalf. This is so because they are committees of the Assembly and
can only act
on behalf of the Assembly. Therefore, reference to
members of the Assembly in the context of the Rule that refers to
committees
in the same breath, must mean that members also would be
acting on behalf of the Assembly.
It is in that context that a
committee or a member may introduce a Bill in terms of section
73(2) of the Constitution, acting
on behalf of the Assembly and not
in an individual or private capacity. The Bill to be introduced
would have been initiated
with the Assembly’s permission in
compliance with Rule 230(1). This Rule has nothing to do with Bills
initiated and prepared
by members of the Assembly in their
individual capacity and at their own expense with a view to
exercising their power to introduce
Bills in terms of section
73(2). The Rule does not in any way prevent members acting in an
individual capacity from introducing
Bills in the Assembly.
Rule 234
This is the only Rule among
those impugned which requires members of the Assembly to submit
proposals to the Speaker, when acting
in an individual capacity.
This Rule is not a model of clarity. In short, it is badly drafted.
It reads:
“
Submission of
legislative proposals to Speaker
(1) An Assembly member
intending to introduce a bill in the Assembly in an individual
capacity (other than as a Cabinet member
or Deputy Minister) must,
for the purpose of obtaining the Assembly’s permission in
terms of Rule 230(1), submit to the
Speaker a memorandum which—
(a) sets out particulars of the
proposed legislation;
(b) explains the objects of the
proposed legislation; and
(c) states whether the proposed
legislation will have financial implications for the State and, if
so, whether those implications
may be a determining factor when the
proposed legislation is considered.
(2) The Speaker must table the
member’s memorandum in the Assembly.”
The following emerges from the
interpretation of this Rule. Although the Rule refers to the
introduction of Bills, it does not
regulate the introduction of
Bills in the Assembly. Instead, it governs a step preceding
introduction. It requires a member
who intends in future to
introduce a Bill in her individual capacity, to submit her proposal
to the Speaker who is obliged
to table it in the Assembly. It is
important to note that a proposal of this kind does not go to
committees. All that is required
by the Rule is that a member
submits a proposal to the Speaker for tabling in the Assembly. This
demonstrates that the applicant’s
reading of the Rules is
wrong. He contends that the proposal goes to a committee dominated
by members of the ruling party.
The text of Rule 234(2) indicates
plainly that the Speaker is obliged to table a Rule 234 proposal in
the Assembly for a decision
whether to grant or refuse permission.
The applicant’s reading
of the Rules confuses proposals by committees or members acting on
behalf of the Assembly with
proposals of members acting in an
individual capacity. A Rule 234 proposal must be in the form of a
memorandum which—
(a) sets out particulars of the
proposed legislation;
(b) explains the objects of the
proposed legislation; and
(c) states whether the proposed
legislation will have financial implications for the State and, if
so, whether those implications
may be a determining factor when the
proposed legislation is considered.
The sole purpose of submitting
a proposal is to obtain the Assembly’s permission in terms of
Rule 230(1). But this permission
relates to authority to prepare
legislation on behalf of the Assembly. To require a member who acts
in an individual capacity
to obtain a Rule 230 permission is
confusing and conflates different capacities under which members of
the Assembly may act
when introducing Bills. There is therefore no
reason why Rule 234 should oblige members acting in their
individual capacity
to seek permission in terms of Rule 230(1),
which is concerned with members representing the Assembly.
Despite the inelegant
language, what is clear is that Rule 234 does not prevent a member
from introducing a Bill in the Assembly.
It merely obliges members
to submit memoranda for the purpose of obtaining permission in
terms of Rule 230. It does not say
that members cannot introduce
Bills without having first obtained permission. Even if this Rule
is read with Rules 235 to 237,
which are also impugned, it does not
preclude members from introducing Bills in the Assembly.
However, there is a
fundamental discord between Rule 234 and the other impugned Rules
which renders improper an approach of
reading it in the context of
those Rules. For example, Rule 235 obliges the Speaker to submit a
member’s memorandum to
the Committee on Private Members’
Legislative Proposals and Special Petitions, which makes a
recommendation to the Assembly.
85
This is not in line with Rule
234(2) which obliges the Speaker to table a member’s
memorandum in the Assembly. Rule 236
too is inconsistent with Rule
234.
86
It speaks of a process that
goes first to the Private Members’ Legislative Committee for
a recommendation before tabling
in the Assembly. This procedure
differs to the one outlined in Rule 234 which deals with proposals
by members in their individual
capacity. For these reasons, Rules
235 and 236 are irrelevant to a legislative process pursued by
members of the Assembly acting
in an individual capacity.
Rule 237 too does not regulate
the introduction of Bills in the Assembly, even if it is read
together with Rule 234. Rule 237
tells us about the process
followed once permission for a proposal to be taken further is
given by the Assembly. But more importantly,
it provides that
members should be reimbursed for reasonable expenses incurred in
taking the authorised proposal further. Reimbursement
may be the
only explanation for requiring that proposals by members of the
Assembly first be approved, even where they are
acting in their
individual capacity. But the requirement makes no sense where
members prepare legislation at their own expense.
The absurdity in
Rule 234 notwithstanding, the impugned Rules do not prevent members
from introducing Bills in the Assembly.
Introduction of Bills
Rule 243 is the Rule that
regulates the introduction of Bills in the Assembly. It provides
that a Bill is introduced by submitting
to the Speaker the
following documents—
(a) a copy of the Bill or, if
the Bill to be introduced was published in terms of Rule 241(1)(c),
a copy of the
Gazette
concerned;
(b) if the Bill was not
published, the explanatory summary referred to in Rule 241(1)(c);
and
(c) a supporting memorandum:
stating whether the Bill is a section 75 or section 76(1) Bill,
explaining its objects, setting out
financial implications of the
Bill to the state, and listing persons and institutions consulted in
preparing the Bill.
87
Barring subrule (3), Rule 243
does not require prior permission of the Assembly if a member
desires to introduce a Bill. Rule
243(3) provides:
“
(3) A
Bill introduced by an Assembly member or committee with the
Assembly’s permission in terms of Rule 236(3) or 238(3)
must—
(a) be accompanied by a
statement to that effect; and
(b) contain on its cover page a
reference to the name of the member or the committee as the member
or committee introducing the
Bill.”
The challenge directed at the
Rules regulating initiation and preparation of legislation was
ill-conceived. As illustrated earlier,
Rule 234 cannot be linked to
Rules 235 and 236 because they are incompatible. The only link that
exists within the impugned
Rules themselves is between Rules 234
and 230. Rule 243(3) refers back to Rules 236(3) and 238(3). It
will be recalled that
Rule 236 regulates a process different from
the one catered for in Rule 234. Therefore, the reference to Rule
236(3) in Rule
243(3) does not speak to the process followed by
members in an individual capacity when they desire to introduce
Bills. That
process is governed by Rule 234. There is no connection
whatsoever between Rule 234 and Rule 243(3).
Rule 238(3) is not relevant
because that Rule applies to proposals submitted to the Speaker by
the Committees of the Assembly.
The complaint is against Rules
which prevent members in their individual capacity from introducing
Bills.
Assuming that Rule 243(3)
formed part of the impugned Rules, I would still not declare it
invalid because it is capable of a
reasonable interpretation which
is consistent with the Constitution.
88
Rule 243(3) must be read in
the context of the entire Rule 243. When read in this way, it
merely adds to information required
by 243(1). In addition to the
copy of the Bill, an explanatory summary and a supporting
memorandum, Rule 243(3) requires that
the cover page must reflect
the name of the member or committee which will introduce the Bill
and proof that the Assembly’s
permission in terms of Rule
236(3) or 238(3) was granted. But, proof of permission must be
attached only in cases where the
Bill to be introduced had followed
the process in Rule 236 or 238. It is apparent from the text of
Rule 243(3) that it does
not demand proof of permission if a
process regulated by a different Rule was followed during the
preparatory stage before
introduction. A reading of Rule 243(3)
which goes beyond Rules 236 and 238 is not warranted.
Conclusion on the
interpretation
Based on the preceding
interpretation of the impugned Rules, none of them prevent a member
of the Assembly, acting in an individual
capacity, from introducing
Bills. The construction preferred in this judgment illustrates that
not all of the impugned Rules
regulate a process followed when
members of the Assembly act in an individual capacity. Rules 235
and 236 do not play any role
at all in this process. These Rules
cover the process followed by members when acting on behalf of the
Assembly. Therefore,
they cannot be included in an attack the basis
of which is that the Rules prevent members of the Assembly, acting
in an individual
capacity, from exercising the power conferred by
section 73(2) of the Constitution.
Moreover Rule 243, which is
the only Rule that regulates the introduction of Bills in the
Assembly, does not require that a
member who introduces a Bill in
an individual capacity must first obtain the Assembly’s
permission. This Rule is silent
on a process followed by members
acting in an individual capacity. Proof of the Assembly’s
permission is required where
members and committees act on behalf
of the Assembly and the procedure in Rule 236 or Rule 238 was
followed. Both these Rules
bear no relevance to the position of
members acting in an individual capacity.
Accordingly, the requirement
stipulated in Rule 234 to the effect that a member of the Assembly
desiring to introduce a Bill
in an individual capacity must seek
permission in terms of Rule 230, is not an obstacle that prevents
members from introducing
Bills. This is so because Rule 243 does
not refer to this process. Therefore, I conclude that the applicant
has failed to establish
any inconsistency between the impugned
Rules and section 73(2) of the Constitution.
The scheme
As I see it, the scheme of the
Rules is this: in the case of committees and members of the
Assembly desiring to initiate or
prepare legislation on behalf of
the Assembly, they must first obtain permission from the Assembly.
89
The Assembly’s
permission is obtained through a process of submitting a proposal
in the form of a memorandum to the Speaker.
In the case of members
acting on behalf of the Assembly, this process is regulated by Rule
235. The memorandum is submitted
to the Speaker who is obliged to
refer it to the Committee on Private Members’ Legislative
Proposals and Special Petitions.
Following consultation with a
relevant portfolio committee, this Committee recommends to the
Assembly that the proposal be
approved or declined. Thereafter the
Committee tables in the Assembly the member’s memorandum and
its recommendation,
which may incorporate the views of the
portfolio committee on finance, relating to the proposed
legislation’s financial
implications. The Speaker then places
the Committee’s recommendation together with the member’s
proposal on the
Order Paper for the Assembly’s decision.
90
The next step is the
consideration of the recommendation by the Assembly which may
either refuse or grant permission. If permission
is granted, the
member concerned must prepare a draft Bill and a memorandum setting
out the objects of the Bill, consult with
the Joint Tagging
Mechanism for advice on the classification of the Bill and comply
with Rule 241 or Rule 258 if it is a proposed
constitutional
amendment. The Assembly’s Secretary must reimburse the member
for reasonable expenses incurred in the
preparation of the Bill.
91
The process outlined above
must be contrasted with the one followed if a member intends to
introduce a Bill in an individual
capacity. This process is
governed by Rule 234. As a preliminary step, the member is obliged
to submit a memorandum to the
Speaker. The memorandum must set out
particulars of the proposed legislation, explain its objects and
state whether it will
have financial implications. Once the Speaker
receives the memorandum, he must table it in the Assembly for its
decision whether
to grant permission or not.
92
In this instance, the
memorandum does not go to any committee and the Assembly does not
require a committee’s recommendation
before deciding to grant
or refuse permission. As stated earlier, the value of this
preliminary step is not clear, as Rule
243(3) does not refer to
this process in requiring additional information when a Bill is
introduced by a member of the Assembly.
However, two options are
available to a member of the Assembly who intends to introduce a
Bill in an individual capacity. She
may submit a proposal to the
Assembly for permission to initiate and prepare. If permission is
granted, the expenses incurred
in the preparation of the Bill are
paid by the Assembly. But if the Assembly refuses to grant
permission, it is still open
to the member concerned to prepare the
Bill at her own expense and introduce it in terms of the relevant
Rule.
Excluded from this scheme is
the process followed when Bills are initiated or prepared by a
committee of the Assembly. Suffice
it to say that this process is
regulated by Rule 238. It is also not necessary to include in the
scheme the process followed
in respect of Bills initiated or
prepared by Cabinet.
Regardless of its origins,
once a Bill is ready to be introduced in the Assembly, the process
in Rule 243 must be followed.
The committee or person who carries
the responsibility of introducing the Bill must submit to the
Speaker the documents referred
to in paragraph 126. In the case of
Bills introduced by Cabinet members or Deputy Ministers, some
additional information different
to the one contained in
Rule 243(3) is required. The detail of such information is not
necessary for present purposes.
Upon introduction in the Assembly,
the Bill is referred by the Assembly’s Secretary to the Joint
Tagging Mechanism, for
classification. The classification of the
Bill and the findings of the Joint Tagging Mechanism must be
conveyed to the committee
considering the Bill and must also be
tabled in the Assembly.
93
For these
reasons I would decline to declare invalid any of the impugned
Rules. And because the process followed by the applicant
in this
case does not meet all the requirements of Rule 243(1), I would
also not direct the Speaker to table the Bill in the
Assembly.
Given that this is a minority judgment, it is unnecessary to
consider what relief, if any, would have been appropriate
in the
light of the Speaker’s reading of the Rules.
For the
Applicant: Advocate D Unterhalter SC and Advocate S Pudifin-Jones
instructed by Thomson Wilks, Inc.
For the
Respondent: Advocate IV Maleka SC and Advocate NH Maenetje SC
instructed by the State Attorney.
1
Section
73 provides, in relevant part:
“
(1) Any Bill may be
introduced in the National Assembly.
(2) Only a Cabinet member or a Deputy Minister, or a
member or committee of the National Assembly, may introduce a Bill
in the
Assembly, but only the Cabinet member responsible for
national financial matters may introduce the following Bills in the
Assembly:
(a) a money Bill; or
(b)
a Bill which provides for legislation envisaged in section 214.”
2
Oriani-Ambrosini
v Sisulu
[2011] ZAWCHC 501.
3
The
applicant challenged the 6
th
edition of the Rules in the
High Court proceedings. These Rules have since been replaced by a
7
th
edition. The Speaker does not raise this as an issue
and is happy to have the merits of this matter decided on the basis
of the
current edition.
4
See
below n 74 for the particular Rules which the applicant alleges to
be constitutionally invalid.
5
The
Inkatha Freedom Party is a minority party in the National Assembly.
6
As
contemplated by sections 42 and 47 of the Constitution.
7
Rule
230.
8
Rule
234.
9
Rule
235.
10
Rule
236(1).
11
Rule
236(2).
12
Rule
236(3) and (4).
13
Rule
237(1).
14
Democratic
Alliance and Another v Masondo
NO and Another
[2002] ZACC
28
;
2003 (2) SA 413
(CC);
2003 (2) BCLR 128
(CC) (
Masondo
) at
para 22.
15
MEC
KZN for Local Government, Housing and Traditional Affairs v Amajuba
District Municipality and Others
[2011] 1 ALL SA 401
(SCA) at
para 17.
16
Oriani-Ambrosini
v Sisulu
[2012] ZAWCHC 41.
17
Section
57 provides, in relevant part:
“
(1) The National Assembly
may—
(a) determine and control its internal arrangements,
proceedings and procedures; and
(b) make rules and orders concerning its business, with
due regard to representative and participatory democracy,
accountability,
transparency and public involvement.
(2) The rules and orders of the National Assembly must
provide for—
(a) the establishment, composition, powers, functions,
procedures and duration of its committees;
(b)
the participation in the proceedings of the Assembly and its
committees of minority parties represented in the Assembly, in
a
manner consistent with democracy”.
18
Section
73(2) of the Constitution.
19
Section
55(1)(b) of the Constitution (cited below n 22).
20
Section
57 of the Constitution.
21
Sections
1(d), 57(1)(b), 57(2)(b) and 195(1) of the Constitution.
22
Section
55(1) provides:
“
In exercising its legislative power, the
National Assembly may—
(a) consider, pass, amend or reject any legislation
before the Assembly; and
(b) initiate or prepare legislation, except money
Bills.”
23
Section
73(1) of the Constitution.
24
By
this he means the Private Members’ Committee. The applicant
relied on
Speaker of the National Assembly
v De Lille and
Another
1999 (4) SA 863
(SCA) (
De Lille
).
25
The
Speaker points to
Glenister v President of the Republic of South
Africa and Others
[2008] ZACC 19
;
2009 (1) SA 287
(CC);
2009 (2)
BCLR 136
(CC) at para 32, which he argues recognises the distinction
between the initiation and preparation stage of law-making and the

process of introducing a Bill in the Assembly.
26
Section
53 is set out in full at [34] below.
27
See
MEC, Department of Agriculture, Conservation and Environment and
Another v HTF Developers (Pty) Ltd
[2007] ZACC 25
;
2008 (2) SA
319
(CC);
2008 (4) BCLR 417
(CC) at para 33;
S v Dlamini; S v
Dladla and Others; S v Joubert; S v Schietekat
[1999] ZACC 8
;
1999 (4) SA 623
(CC);
1999 (7) BCLR 771
(CC) at para 47; and
Public
Carriers Association and Others v Toll Road Concessionaries (Pty)
Ltd and Others
1990 (1) SA 925
(AD) at 949F.
28
Shorter
Oxford English Dictionary: On Historical Principles
6 ed Vol 1:
A-M (Oxford University Press), under “initiate”, verb at
2.
29
Shorter
Oxford English Dictionary: On Historical Principles
6 ed Vol 2:
N-Z (Oxford University Press), under “prepare”, verb at
1a.
30
The
meaning that I have attributed to these words finds support from a
contrast with the word “introduce” in section
73(2).
Although the definition of “initiate” includes the word
“introduce”, the rule of statutory interpretation

referred to in [27] above dictates that they be given different
meanings, unless the context indicates otherwise. For the reasons

traversed in [52]-[56] below, the context does not provide a
contrary indication.
31
A
Deputy Minister is not a member of Cabinet (section 91(1) of the
Constitution provides that “[t]he Cabinet consists of
the
President, as head of the Cabinet, a Deputy President and
Ministers”). She is thus not part of the collective that
has
the power to initiate and prepare legislation. The purpose of her
appointment is to “assist” a member of Cabinet
(section
93(1) of the Constitution). The possibility she has to introduce a
Bill in the Assembly would arise in circumstances
where a Cabinet
member is not able to introduce a Bill herself. Importantly, the
initiation and preparation would probably have
been done by or with
the permission of Cabinet and the introduction of a Bill by a Deputy
Minister would have to carry the approval
of a Minister that she was
appointed to assist.
32
Section
74(1) provides:
“
Section 1 and this subsection
may be amended by a Bill passed by—
(a) the National Assembly, with a supporting vote of at
least 75 per cent of its members; and
(b)
the National Council of Provinces, with a supporting vote of at
least six provinces.”
33
Section
50(1)(a).
34
Section
51(1).
35
Section
52(1).
36
Section
52(5).
37
Section
52(4).
38
Section
57(1)(a) and (b).
39
Section
42(1) of the Constitution.
40
Section
60(1) of the Constitution.
41
South
African Transport and Allied Workers Union and Another v Garvas
and Others
[2012] ZACC 13
at para 61.
42
United
Democratic Movement v President of the Republic of South Africa and
Others (African Christian Democratic Party and Others
Intervening;
Institute for Democracy in South Africa and Another as
Amici
Curiae
) (No 2)
[2002] ZACC 21
;
2003 (1) SA 495
(CC);
2002
(11) BCLR 1179
(CC) at paras 24 and 26.
43
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 110-7.
44
Rail
Commuters Action Group and Others v Transnet Ltd t/a Metrorail
and Others
[2004] ZACC 20
;
2005 (2) SA 359
(CC);
2005 (4)
BCLR 301
(CC) at paras 74-6.
45
Sections
1(d), 57(1), 57(2)(b) and 195(1) of the Constitution. See
Matatiele
Municipality and Others v President of the RSA and Others
[2006]
ZACC 2
;
2006 (5) SA 47
(CC);
2006 (5) BCLR 622
(CC) at para 110,
where Sachs J held that “[i]n our constitutional order, the
legitimacy of laws made by Parliament comes
not from awe, but from
openness” and
President of the Republic of South Africa and
Others v M
& G Media Ltd
2011 (2) SA 1
(SCA) at para
1, where it was held that “[o]pen and transparent government .
. .
concerning the affairs of the State is the
lifeblood of democracy.”
46
Section
42(3) of the Constitution provides:
“
The National Assembly is
elected to represent the people and to ensure government by the
people under the Constitution. It does
this by choosing the
President, by providing a national forum for public consideration of
issues, by passing legislation and
by scrutinizing and overseeing
executive action.”
47
In
S v Lawrence; S v Negal; S v Solberg
[1997] ZACC 11
;
1997 (4)
SA 1176
(CC);
1997 (10) BCLR 1348
(CC) at para 160, the following
was said:
“
One of the functions of the Constitution is
precisely to protect the fundamental rights of non-majoritarian
groups, who might
well be tiny in number and hold beliefs considered
bizarre by the ordinary faithful. In constitutional terms, the
quality of
a belief cannot be dependent on the number of its
adherents nor on how widespread or reduced the acceptance of its
ideas might
be, nor, in principle, should it matter how slight the
intrusion by the State is.” (Footnote omitted.)
48
Merafong
Demarcation Forum and Others v President of the Republic of South
Africa and Others
[2008] ZACC 10
;
2008 (5) SA 171
(CC);
2008
(10) BCLR 969
(CC) at para 73;
Doctors for Life International
above n 43 at para 40; and
Minister of Health and Another NO
v New Clicks South Africa (Pty) Ltd and Others (Treatment Action
Campaign and Another as
Amici Curiae
)
[2005] ZACC 14
;
2006 (2) SA 311
(CC);
2006 (8) BCLR 872
(CC) at paras 111-3.
49
Masondo
above n 14 at paras 42-3.
50
S
v Makwanyane
and Another
[1995] ZACC 3
;
1995 (3) SA 391
(CC);
1995 (6) BCLR 665
(CC) at para 262.
51
Shabalala
and Others v Attorney-General, Transvaal, and Another
[1995] ZACC 12
;
1996 (1) SA 725
(CC);
1995 (12) BCLR 1593
(CC) at
para
26.
52
Masondo
above n 14 at para 78. The following words in Sen
The Idea of
Justice
(The Belknap Press of Harvard University Press,
Cambridge 2009) at 337 are instructive in this regard: “If a
majority is
ready to support the rights of minorities, and even of
dissenting or discordant individuals, then liberty can be guaranteed
without
having to restrain majority rule.”
53
Shorter
Oxford English Dictionary
above n 28, under “introduce”
at 1b.
54
Id
at 6.
55
Id
at 8.
56
See
also sections 59(1) and 60(3) of the interim Constitution, where a
distinction was made between the act of introduction of
a Bill in
the Assembly and the prior act of initiation by the Minister
responsible for national financial matters.
57
See
[27] above.
58
Tongoane
and Others v Minister of Agriculture and Land Affairs and Others
[2010] ZACC 10
;
2010 (6) SA 214
(CC);
2010 (8) BCLR 741
(CC) at para
118.
59
John
Stuart Mill’s
cri de coeur
in his essay “On the
Liberty of Thought and Discussion” in Gray (ed)
On Liberty
and Other Essays
(Oxford University Press Inc, New York 2008) at
59, in which he advocated the individual and social value of freedom
of thought
and expression, is apposite here:
“
[I]f any opinion is compelled
to silence, that opinion may, for aught we can certainly know, be
true. To deny this is to assume
our own infallibility. . . .
[T]hough the silenced opinion be an error, it may, and very commonly
does, contain a portion of
truth; and since the general or
prevailing opinion on any subject is rarely or never the whole
truth, it is only by the collision
of adverse opinions that the
remainder of the truth has any chance of being supplied. . . .
[E]ven if the received opinion be
not only true, but the whole
truth; unless it is suffered to be, and actually is, vigorously and
earnestly contested, it will,
by most of those who receive it, be
held in the manner of a prejudice, with little comprehension or
feeling of its rational grounds.
And not only this, but . . . the
meaning of the doctrine itself will be in danger of being lost, or
enfeebled, and deprived of
its vital effect on the character and
conduct: the dogma becoming a mere formal profession, inefficacious
for good, but cumbering
the ground, and preventing the growth of any
real and heartfelt conviction, from reason or personal experience.”
60
On
the scope and meaning of “public involvement” in the
legislative process, see
Doctors for Life International
above
n 43 at paras 118-29; and on its informative value, see the dictum
in
King
and Others v Attorneys Fidelity Fund Board of
Control and Another
[2006] 1 All SA 458
(SCA) at para 22 (which
dictum was approved in
Doctors for Life International
above n
43 at para 140).
61
Although
it was said in a different context, the words of Sachs J in
Coetzee
v Government of the Republic of South Africa; Matiso and Others v
Commanding Officer, Port Elizabeth Prison, and Others
[1995]
ZACC 7
;
1995 (4) SA 631
(CC);
1995 (10) BCLR 1382
(CC) at para 46
are apposite in this regard:
“
The notion of an open and
democratic society is thus not merely aspirational or decorative, it
is normative, furnishing the matrix
of ideals within which we work,
the source from which we derive the principles and rules we apply,
and the final measure we use
for testing the legitimacy of impugned
norms and conduct.” (Footnote omitted.)
62
See
Mattson “Private Members’ Initiatives
and Amendments” in Döring (ed)
Parliaments
and Majority Rule in Western Europe
(accessed
at
http://www.uni-potsdam.de/db/vergleich/Publikationen/Parliaments/PMR-W-Europe.pdf
on 2 October 2012) at 458-66.
63
Germany,
for example, is cited by Mattson id at 458 as having “[t]he
most severe numerical limit”, with a Bill requiring
the
support of a party, or at least 5 per cent of the individual members
of the Bundestag. This illustrates the excessive nature
of the
permission requirement in the Rules, which requires a majority vote
before legislation may be initiated or prepared. See
also the
discussion of Austria, Italy, Spain and Belgium (at 458), all of
whom impose varying degrees of numerical limits on
the power to
initiate legislation.
64
Id
at 448-84.
65
Masondo
above n 14 at para 18.
66
The
Preamble to the Constitution provides that one of the aims in
adopting the Constitution was to “[l]ay the foundations
for a
democratic and open society in which government is based on the will
of the people”. See generally Chapter 3 of Gutmann
and
Thompson
Democracy and Disagreement
(The Belknap Press of
Harvard University Press, Cambridge 1996). The authors, at 97, say
the following on the value of publicity,
or openness, to the
democratic process: “Publicity is valuable first and foremost
because it is a friend of democratic
accountability. It motivates
public officials to do their duty. It also encourages citizens to
deliberate about public policy
and enables officials to learn about
and from public opinion.” (Footnote omitted.)
67
Roux
“Democracy” in Woolman et al (eds)
Constitutional Law
of South Africa
2 ed (Juta & Co Ltd, Cape Town 2011) at
10–25.
68
See
Executive Council, Western Cape
v Minister of Provincial
Affairs and Constitutional Development and Another; Executive
Council, KwaZulu-Natal v President of the
Republic of South Africa
and Others
[1999] ZACC 13
;
2000 (1) SA 661
(CC);
1999 (12) BCLR
1360
(CC) at para 100, for an analogous example regarding the scope
of the power of the Assembly to regulate the internal proceedings
of
its committees.
69
See
below n 74 for the scope of the challenge.
70
See
Malan “Faction rule, (natural) justice and democracy”
(2006) 21(1)
SAPR/PL
142 at 154-7.
71
Quoted
in full in [79] below.
72
Quoted
in full in [82] below.
73
It
is not, so to speak, possible to separate the good from the bad, in
a manner that is consistent with the Constitution (see
Coetzee
above n 61 at para 16 and
National Coalition for Gay and Lesbian
Equality and Others v Minister of Home Affairs and Others
[1999]
ZACC 17
;
2000 (2) SA 1
(CC);
2000 (1) BCLR 39
(CC) at para 74).
74
In
his notice of motion, the applicant prays that the following
portions of the Rules be declared unconstitutional:
i) the words “
Private
Member’s Legislative Proposals and” in Rule 121(1)(h);
ii) the words “with the permission of the
Assembly” in Rule 230(1);
iii)
the words
“
for the purpose of
obtaining the Assembly’s permission in terms of Rule 230(1)”
in Rule 234(1);
iv) Rules 235 and
236;
v) the words “If
the Assembly gives permission that the proposal be proceeded with”
and “draft” in Rule
237;
vi) Rule 237(2);
vii)
the words “
for the purpose of
obtaining the Assembly’s permission in terms of Rule 230(1)”
in Rule 238(1);
viii)
Rules
238
(3) and (4); and
ix)
the words “
If the Assembly gives
permission that the proposal be proceeded with” and “draft”
in Rule 239.
In
the alternative, he prays that the following be declared
unconstitutional:
Rule
233 to the extent that the words “Cabinet Member or Deputy
Minister” do not include the words “a Member
of the
Assembly and a committee”;
the
words “with the permission of the Assembly” in Rule
230(1);
and
Rules
234 to 240.
75
See
[87] below.
76
Rule
237(2) provides: “The Secretary must reimburse a member for
any reasonable expenses incurred by the member in giving
effect to
Subrule (1), provided that those expenses were approved by the
Speaker before they were incurred.”
77
Whilst
the limits of the Constitution constrain even the inner-workings of
Parliament (see
Pharmaceutical Manufacturers Association of SA
and Another: In re Ex Parte President of the Republic
of
South Africa and Others
[2000] ZACC 1
;
2000 (2) SA 674
(CC);
2000 (3) BCLR 241
(CC) and
De Lille
above n 24 at para 14),
there is nonetheless a need for courts to show appropriate deference
to the affairs of the legislative
branch of government. This
approach gives proper recognition to the principle of Parliamentary
immunity, a basic democratic principle,
which now finds its home in
the constitutional principle of separation of powers (see Budlender
“National Legislative Authority”
in Woolman et al (eds)
Constitutional Law of South Africa
2 ed (Juta & Co Ltd,
Cape Town 2011) at 17–36 to 17–37 and 17–91 to
17–96).
78
Coetzee
above n 61 at para 16.
79
Section
172(1)(a) and (b) of the Constitution. Although the remedy that I
propose has the effect of expunging from the Rules the

constitutionally invalid permission requirement, the Rules will
still give effect to the purpose of section 57, by promoting
the
values of democracy, transparency, accountability and openness, as
well as giving protection to individual members and minority
parties
in the Assembly (see Bishop “Remedies” in Woolman et al
(eds)
Constitutional Law of South Africa
2 ed (Juta & Co
Ltd, Cape Town 2011) at 9–100).
80
Prayer
2 in the notice of motion reads: “Ordering the Respondent
to
introduce the
Bill
in the National
Assembly
on the basis of the same procedures and under the
same conditions applicable to Bills introduced by a Cabinet member
or a Deputy
Minister.”
81
Phillips
and Another v National Director of Public Prosecutions
[2005]
ZACC 15
;
2006 (1) SA 505
(CC);
2006 (2) BCLR 274
(CC);
Shaik v
Minister of Justice and Constitutional Development and Others
[2003] ZACC 24
;
2004 (3) SA 599
(CC);
2004 (4) BCLR 333
(CC) at
paras 24-5;
Prince v President, Cape Law Society, and Others
[2002] ZACC 1
;
2002 (2) SA 794
(CC);
2002 (3) BCLR 231
(CC); and
National Coalition for Gay and Lesbian Equality and Others v
Minister of
Home Affairs and Others
[1999] ZACC 17
;
2000
(2) SA 1
(CC);
2000 (1) BCLR 39
(CC) at para 7.
82
Section
57(1) of the Constitution provides:
“
The National Assembly may—
(a) determine and control its internal arrangements,
proceedings and procedures; and
(b) make rules and orders concerning its business, with
due regard to representative and participatory democracy,
accountability,
transparency and public involvement.”
83
Section
172(1) of the Constitution provides:
“
When deciding a
constitutional matter within its power, a court—
(a) must declare that any law or conduct that is
inconsistent with the Constitution is invalid to the extent of its
inconsistency;
and
(b) may make any order that is just and equitable,
including—
(i) an order limiting the retrospective effect of the
declaration of invalidity; and
(ii) an order suspending the declaration of invalidity
for any period and on any conditions, to allow the competent
authority
to correct the defect.”
84
Section
55(1) provides:
“
In exercising its legislative
power, the National Assembly may—
(a) consider, pass, amend or reject any legislation
before the Assembly; and
(b)
initiate or prepare legislation, except money Bills.”
85
Rule
235 provides:
“
Referral of proposals to committee
(1) The Speaker must refer the member’s
memorandum to the Committee on Private Members’ Legislative
Proposals and
Special Petitions.
(2) The Committee may consult the portfolio committee
within whose portfolio the proposal falls.
(3) After considering the member’s memorandum,
the Committee must recommend that permission either be—
(a) given to the member to proceed with the proposed
legislation; or
(b) refused.
(4) If the Committee recommends that the proposed
legislation be proceeded with, it may—
(a) express itself on the desirability of the principle
of the proposal;
(b) recommend that the Assembly approve the member’s
proposal in principle; or
(c) recommend that permission be given subject to
conditions.”
86
Rule
236 provides:
“
Consideration of
legislative proposal by Assembly
(1) The Committee on Private Members’ Legislative
Proposals and Special Petitions must table in the Assembly the
member’s
memorandum and the Committee’s recommendation,
including any views of a portfolio committee on the financial
or
other
implications of the proposal.
(2) The Speaker must place the Committee’s report
together with the member’s proposal on the Order Paper for a
decision.
(3) The Assembly may—
(a) give permission that the proposal be proceeded
with;
(b) refer the proposal back to the Committee or the
portfolio committee concerned for a further report; or
(c) refuse permission.
(4) If the Assembly gives permission that the proposal
be proceeded with, it may, if it so chooses—
(a) express itself on the desirability of the proposal;
or
(b) subject its permission to conditions.”
87
Rule
243, in relevant part, provides:
“
Introduction of bills in
Assembly
(1) A Cabinet member or Deputy Minister or an Assembly
member or committee introduces a Bill (other than a Bill mentioned
in Subrule
(4)) by submitting to the Speaker—
(a) a copy of the Bill or, if the Bill as it is
introduced was published in terms of Rule 241(1)(c), a copy of the
Gazette
concerned;
(b) the explanatory summary referred to in Rule
241(1)(c), if the Bill itself was not published; and
(c) a supporting memorandum which must—
(i) state whether the Bill is introduced as a section
75 Bill, a section 76(1) Bill, a money Bill or a mixed section 75/76
Bill;
(ii) explain the objects of the Bill;
(iii) give an account of the financial implications of
the Bill for the state;
(iv) contain a list of all persons and institutions
that have been consulted in preparing the Bill; and
(v) if the Bill is introduced by a Cabinet member or a
Deputy Minister, include a legal opinion by a State law adviser, or
a law
adviser of the State department concerned, on the
classification of the Bill and any other question in respect of
which the JTM
is required to make a finding in terms of Joint Rule
160.
(1A) A Bill introduced by a Cabinet member or Deputy
Minister must be certified by the Chief State Law Adviser or a state
law
adviser designated by him/her as being—
(a) consistent with the Constitution; and
(b) properly drafted in the form and style which
conforms to legislative practice.
(1B) If a Bill is not certified as contemplated in
subrule (1A), the Bill must be accompanied by a report or legal
opinion by
a state law adviser mentioned in subrule (1A) on why it
has not been so certified.”
88
Investigating
Directorate: Serious Economic Offences and Others v Hyundai Motor
Distributors (Pty) Ltd and Others
:
In re Hyundai Motor
Distributors (Pty) Ltd and Others v Smit NO and Others
[2000]
ZACC 12
;
2001 (1) SA 545
(CC);
2000 (10) BCLR 1079
(CC) at paras
21-4. This principle was applied in
Centre
for Child Law v
Minister for Justice and Constitutional Development and Others
[2009] ZACC 18
;
2009 (6) SA 632
(CC);
2009 (11) BCLR 1105
(CC);
Bertie van Zyl (Pty)
Ltd and Another v Minister for Safety
and Security and Others
[2009] ZACC 11
;
2010 (2) SA 181
(CC);
2009 (10) BCLR 978
(CC); and
Affordable Medicines
Trust
and Others v Minister of Health and Others
[2005] ZACC 3
;
2006
(3) SA 247
(CC);
2005 (6) BCLR 529
(CC).
89
See
Rule 230(1).
90
Rule
236 above n 86.
91
Rule
237 provides:
“
(1) If the Assembly gives
permission that the proposal be proceeded with, the member concerned
must —
(a) prepare a draft bill, and a memorandum setting out
the objects of the bill, in a form and style that complies with any
prescribed
requirements;
(b) consult the JTM for advice on the classification of
the bill; and
(c) comply with Rule 241 or, if it is a proposed
constitutional amendment, with Rule 258.
(2) The Secretary must reimburse a member for any
reasonable expenses incurred by the member in giving effect to
Subrule (1),
provided that those expenses were approved by the
Speaker before they were incurred.”
92
Rule
234(2).
93
Rule
244 provides:
“
(1) When a Bill is introduced
in the Assembly in terms of Rule 243 or 260, the Secretary must
refer the Bill to the JTM for classification
of the Bill in terms of
Joint Rule 160.
(2) The classification of the Bill and all findings of
the JTM must be—
(a) conveyed to the portfolio or other committee
considering the Bill; and
(b) tabled in the
Assembly.”