Mazibuko v Sisulu and Another (CCT 115/12) [2013] ZACC 28; 2013 (6) SA 249 (CC); 2013 (11) BCLR 1297 (CC) (27 August 2013)

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[2013] ZACC 28
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Mazibuko v Sisulu and Another (CCT 115/12) [2013] ZACC 28; 2013 (6) SA 249 (CC); 2013 (11) BCLR 1297 (CC) (27 August 2013)

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CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 115/12
[2013] ZACC 28
In the matter between:
LINDIWE MAZIBUKO, MP, LEADER OF THE
OPPOSITION IN THE NATIONAL ASSEMBLY
........................................
Applicant
and
MAX VUYISILE SISULU, MP,
SPEAKER OF THE NATIONAL ASSEMBLY
.................................
First
Respondent
MATHOLE SEROFO MOTSHEKGA, MP,
THE CHIEF WHIP, NATIONAL ASSEMBLY
.............................
Second
Respondent
Heard on : 28 March 2013
Decided on : 27 August 2013
JUDGMENT
MOSENEKE DCJ (Froneman J, Khampepe J, Nkabinde J, Skweyiya J, Van der
Westhuizen J concurring):
Introduction
A
dispute has arisen in the National Assembly (Assembly) over a motion
of no confidence in the President of the Republic. Parties
to the
dispute are Ms Lindiwe Mazibuko, MP (applicant), the Leader of the
Opposition
1
who also acts on behalf of seven other minority political parties
represented in the National Assembly,
2
Mr Max Vuyisile Sisulu, MP, the Speaker of the Assembly (Speaker)
3
and Dr Mathole Serofo Motshekga, MP, Chief Whip of the majority
party (Chief Whip) and of the National Assembly.
Section
102(2) of the Constitution does envisage a motion of no confidence
in the President. Its text is plain:
“
If the
National Assembly, by a vote supported by a majority of its members,
passes a motion of no confidence in the President, the
President and
the other members of the Cabinet and any Deputy Ministers must
resign.”
Aside
from ancillary differences, the core disputes between the parties
are fourfold. They are: (a) whether the Speaker had the
power to
schedule a motion of no confidence on his own authority; (b) whether
the Rules are inconsistent with the Constitution
to the extent that
they do not provide for motions of no confidence in the President,
as envisaged in section 102(2); (c) whether
Parliament has failed to
fulfil a constitutional obligation, in terms of section 167(4) of
the Constitution,
4
by failing to schedule a motion of no confidence in the President
for debate and vote in the Assembly within a reasonable time;
and
(d) whether, in the light of the fact that the National Assembly
Rules Committee (Rules Committee) is currently reviewing
the Rules
to provide, inter alia, specifically for motions of no confidence
brought under section 102, it is necessary for this
Court to
pronounce on the dispute at this stage.
These issues arise in the context of five applications before us.
The first three applications have been initiated by the applicant

and the last two by the Speaker and the Chief Whip respectively.
The
first application is for leave to appeal directly to this Court
against a decision of the Western Cape High Court, Cape Town
(High
Court), delivered on 22 November 2012 by Davis J, dismissing
the applicant’s application on the ground that
the Speaker
lacked the power to schedule a motion of no confidence in the
President for debate in the Assembly and consequently
a court may
not order him to do so.
5
The second application is in the alternative to the application for
leave to appeal directly to this Court. In it, the applicant
seeks
leave for direct access to this Court for a declaratory order that
the Rules are inconsistent with the Constitution, and
therefore
invalid, to the extent that they do not protect the rights of the
applicant and other members of the Assembly to have
a motion of no
confidence in the President accorded priority over other business
before the Assembly. The third application is
in terms of section
167(4) of the Constitution. The applicant contends that, by failing
to schedule a motion of no confidence
in the President for debate
and vote within a reasonable time, Parliament has failed to fulfil a
constitutional obligation.
The
Speaker lodged the fourth application for leave to cross-appeal
against the costs order of the High Court. The High Court
made no
order as to costs. The Speaker contends that the High Court should
have ordered the applicant to pay his costs. The Chief
Whip, in the
fifth application, seeks leave to cross-appeal against the cost
order of the High Court and against two findings
of the High Court,
that (a) a motion of no confidence in terms of section 102(2) “is
inherently urgent” and “should
be treated as a matter of
urgency”, and (b) the Rules do not provide for a determination
of what constitutes “urgency”.
Background
On 8
November 2012, the applicant gave notice of a motion of no
confidence in the President. The motion was initiated in terms
of
Rule 98(1)(a) of the Rules.
6
The motion was placed on the Assembly’s Order Paper on
Tuesday, 13 November 2012. The terms of the motion are:
“
Draft
resolution (Ms LD Mazibuko): That the House—
(1) notes that under the
leadership of President Jacob G Zuma—
(a) the justice system has been
politicised and weakened;
(b) corruption has spiralled out
of control;
(c) unemployment continues to
increase;
(d) the economy is weakening;
(e) the right of access to
quality education has been violated, and therefore
(2) in terms of section 102(2)
of the Constitution of the Republic of South Africa, 1996, pass a
motion of no confidence in President
Zuma.”
As it
is the practice in the Assembly, the motion was first discussed by
the Chief Whip’s Forum (Forum) at its meeting of
14 November
2012. The Forum coordinates and discusses matters for which Whips
are responsible
7
and provides a platform for possible political agreement on issues
concerning Whips. The Rules permit the Speaker to consult
the Forum
when appropriate.
8
The Forum was unable to reach consensus on the scheduling of the
motion for debate and vote in the Assembly. It therefore referred

the motion to the Programme Committee of the Assembly (Programme
Committee) for consideration.
9
The
Programme Committee is chaired by the Speaker and consists of eleven
other office-bearers of the Assembly, including the Chief
Whip and
Whips from minority parties.
10
Its functions and powers include preparing and adjusting the annual
programme of the Assembly, implementing Rules on scheduling
or
programming related to the business of the Assembly, and making
decisions to prioritise or postpone any business of the Assembly.
11
On 15
November 2012, the Programme Committee met to consider the proposed
motion of no confidence, but its deliberations on the
motion were
deadlocked. The Speaker, who chaired the meeting, concluded that
because of the absence of consensus, the motion
could not be
scheduled. After the meeting, the Speaker informed the opposition
parties, who sought to persuade him otherwise,
that he would seek
legal advice on the matter. He also informed them that he would
consider reporting the lack of consensus in
the Programme Committee
to the Assembly. He added that it was up to the Assembly to override
the decision of the Programme Committee.
As a result, the motion was
not scheduled before the Assembly for debate – urgently or at
all.
On
the evening of 15 November 2012, the applicant, acting in her
earlier stated capacities, had a letter delivered to the Chief
Legal
Advisor in Parliament demanding that the Speaker decide, in terms of
Rule 2(1), whether the motion should be tabled. The
applicant also
requested that the Speaker undertake all steps necessary to ensure
that the motion was tabled for debate and vote
in the Assembly on or
before 22 November 2012. The applicant further demanded that the
Speaker confirm with her attorneys by
no later than 10h00 on Friday,
16 November 2012, whether the motion would be placed on the Order
Paper of the Assembly for the
sitting of Thursday, 22 November 2012.
By
10h00 on Friday, 16 November 2012, the state attorney, acting for
the Speaker, stated in a letter to the applicant that the
Speaker
was attending a funeral in Lesotho and had sought the advice of
senior counsel, the response of which could only be furnished
on
Monday, 19 November 2012. In another letter received around midday,
the state attorney informed the applicant’s attorneys
that it
would be “premature and wasteful” for the applicant to
initiate an urgent application in the meantime.
On
Friday, 16 November 2012, the applicant nonetheless commenced urgent
proceedings in the High Court. She sought what she called
“final
interdictory relief” in the form of an order directing the
Speaker to take whatever steps were necessary to
ensure that the
motion was scheduled for a debate and a vote in the Assembly before
Thursday, 22 November 2012.
In the High Court
The
Speaker opposed the urgent application on several grounds.
Importantly, he contended that the order sought by the applicant
was
not competent because Rule 2(1) does not give the Speaker the
power to schedule a debate and vote in the Assembly in
the absence
of consensus on the part of the Programme Committee. And even if he
had the power, the Assembly had the authority
to override or reverse
his decision. He also contested the urgency of the application. He
contended that it was premature and
unduly precipitous given that he
was away in Lesotho and had informed the applicant that he was
awaiting advice from senior counsel
before assuming a final stance.
The application should have awaited the decision of the Assembly
after he had reported the deadlock
in the Programme Committee. The
Speaker added that although it was correct that the last sitting of
the Assembly was scheduled
to take place on Thursday, 22 November
2012, committees of the Assembly were to continue with their work
until 9 December 2012.
This meant that it was possible to re-convene
the Assembly to debate the motion of no confidence subsequent to 22
November 2012.
The
opposing affidavit of the Chief Whip stated that it had been
prepared and filed under extremely urgent circumstances. That
must
have been so. However, his opposition to the urgent application took
a different turn from that of the Speaker. The Chief
Whip contended
that the relief sought should be refused because the matters raised
in the motion of no confidence should ordinarily
be dealt with by
the relevant portfolio committee of Parliament. His further ground
was that the last sitting of the Assembly
was on 22 November 2012
and could not be any later and that the schedule of the last
remaining week was full and had no room
to deliberate on the motion.
The Chief Whip accused the applicant of harbouring an ulterior
political motive by bringing the
motion when she could renew it in
the new year.
The
High Court heard the application on 20 November 2012 and on 22
November 2012 dismissed it with no order as to costs.
12
It held that the applicant had the right to move a motion of no
confidence and to have it debated. A motion of no confidence,
the
Court held, “is an inherently urgent matter” and should
be treated as a matter of urgency. The Court noted that
“
[i]t
cannot be within the gift of the majority party to decide upon the
issue of the timing of this kind of motion
”.
13
(Emphasis added.)
The
High Court, however, held that the Speaker did not have the residual
power under the Rules to break the deadlock or schedule
a debate of
a motion of no confidence, acting on his own.
14
The Court reasoned that it had no power to grant a
mandamus
directing the Speaker to exercise a power he did not have.
15
The
Court further held that there was a lacuna in the Rules that
prevented the vindication of the constitutional right to move
a
motion of that sort; but that the High Court did not have the power
to decide whether Parliament had failed to fulfil a constitutional

obligation under section 167(4)(e) of the Constitution. That power,
it held, was vested in the exclusive jurisdiction of this
Court.
16
In this Court
Does the Speaker have the residual power in terms of Rule 2(1)?
(a) Leave for direct appeal
The
applicant seeks leave to appeal directly to this Court against the
decision of the High Court. It is regrettable that these
important
constitutional issues could not be properly and thoroughly
ventilated through the normal judicial process. The matter
was
brought to the High Court on an urgent basis and was dealt with by a
single judge. The application for leave to appeal directly
to this
Court means that we have not had the benefit of the issues being
considered by a full court or the Supreme Court of Appeal.
This
Court, on a number of occasions, has stressed the undesirability of
bypassing a multi-staged litigation process and that
especially
where the issues are of great complexity and importance the more
compelling the need becomes for this Court to be
assisted by the
views of other courts.
17
This
is not an inflexible rule or the only consideration in deciding
whether to grant leave to appeal. The test remains whether
it is in
the interest of justice to grant leave to appeal. There can be no
debate that the decision of the High Court relates
to a
constitutional entitlement of great import to our constitutional
democracy. The question of when and how a member of the
Assembly may
vindicate the power to initiate a motion of no confidence under
section 102, and have it debated by and voted on
in the Assembly,
deserves this Court’s attention.
Furthermore,
the importance of a motion of no confidence to the proper
functioning of our constitutional democracy cannot be gainsaid.
The
primary purpose of a motion of no confidence is to ensure that the
President and the national executive are accountable to
the Assembly
made up of elected representatives. Thus a motion of no confidence
plays an important role in giving effect to the
checks and balances
element of our separation-of-powers doctrine. One of the vital
purposes of enshrining the doctrine of separation
of powers is to
limit the power of a single individual or institution and to make
the branches of government accountable to one
another.
18
The
dispute before us relates, not to an issue pertaining to the common
law, but to an interpretation of a constitutional provision
relating
to the Assembly. It is thus more likely than not that the dispute
would have, in any event, ended up in this Court.
Also, it would not
be in the interest of justice to allow uncertainty over the proper
interpretation of the constitutional provisions
in issue to persist
for long. Another important consideration is that neither the
Speaker nor the Chief Whip sought to persuade
us not to hear the
appeal. If anything, the Speaker and the Chief Whip have filed
applications of their own for leave to appeal.
It is indeed in the
interest of justice that we grant leave to appeal directly to this
Court.
(b)
Merits
As we
have seen, in the High Court the applicant unsuccessfully sought a
mandamus
against the Speaker to take whatever steps necessary
to ensure that the motion of no confidence was scheduled for a
debate and
a vote in the Assembly before 22 November 2012.
In
oral argument before us, the applicant properly conceded that the
relief she sought before the High Court is now moot. She
also
abandoned the prayer of a
mandamus
against the Speaker. The
deadline of 22 November 2012 has come and passed. The relief then
sought is now moot. Additionally,
the prayer in the applicant’s
notice of motion that the Speaker personally take whatever steps are
necessary to vindicate
the applicant’s constitutional right,
is so open-ended and vague as to render the relief incompetent.
The
applicant contended that she is nonetheless entitled to advance the
limited ground of appeal that the High Court erred in
holding that
the first respondent lacks the residual power to schedule a motion
of no confidence if the Programme Committee cannot
arrive at a
consensus on tabling the motion, a question I now turn to.
The
nub of this contention is that the Speaker has the residual power
because Rule 2(1) empowers him to “give a ruling or
frame a
Rule in respect of any eventuality for which these Rules do not
provide.” The applicant contends that a failure
to reach an
agreement in the Programme Committee on the scheduling of the motion
amounts to that “unforeseen eventuality”
because the
Rules do not provide for a deadlock-breaking mechanism. To that
extent, the argument runs, the Speaker has the duty
and authority to
rule that the motion be heard and disposed of by the Assembly.
The
High Court disposed of the contention in these terms:
“
Given
the specific rules dealing with programming, it cannot be said that
rule 2 applies in this case, in that there is a provision
dealing
with the setting and scheduling of debates in the National Assembly,
namely the rules concerning the programme committee.
Rule 2 deals
with rulings which must cover matters never contemplated in the
rules.”
19
I
respectfully agree. Rule 2(1) does not apply. The Rule is meant to
cover matters not dealt with in the Rules. Setting and scheduling
of
“any motion” in the Assembly is regulated extensively by
Rules 187 to190.
20
These Rules inform us that the task of scheduling motions rests with
the Programme Committee. Nothing in the Rules justify the
inference
that the power to set and schedule a motion devolves upon the
Speaker when the Programme Committee cannot decide, for
whatever
reason, on a matter within its remit.
What
is more, Rule 2(1) is permissive and not peremptory. Therefore, even
if it were applicable, the Speaker is not obliged to
give a ruling
or make a Rule. Construing the Rule as peremptory when a deadlock
arises as the applicant would have us, would
run against the
ordinary meaning of the wording of Rule 2(1). It would also run
afoul of the scheme of the Rules which draws
careful boundaries
between the powers and duties of committees that facilitate the
effective and efficient functioning of the
Assembly.
21
The
Speaker referred us to Ruling 155B in the Digest of Rulings of the
Assembly which, we are told, has precedential value for
the
Assembly. It states that “Presiding Officers do not make up
the Orders of the Day”. They merely go by “what
is
decided by the Chief Whips and the Programme Committee.”
Whilst the Ruling is not binding on a court, it is consistent
with
the purposive construction of Rule 2(1). The residual power of the
Speaker is not meant to override the powers and duties
of the
committees or to usurp a role that the Rules entrust to a committee.
There
is an additional and compelling reason why the
mandamus
the
applicant sought was incompetent. Section 57(1) of the Constitution
22
vests in the Assembly the power to determine and control its
internal arrangements, proceedings and procedures, and it may make

rules and orders concerning its business.
23
Should the Speaker choose to make a ruling on the business of the
Assembly, it would always be subject to the overriding authority
of
the Assembly, which is the ultimate master of its own process,
subject to the usual caveat that its processes are consistent
with
the Constitution and the law.
On a
proper reading of the Rules, the Speaker acting alone has no
residual power to schedule a motion of no confidence in the

President for debate and vote in the Assembly. I would dismiss the
appeal. I deal with the costs of the appeal later.
The constitutional validity of the Rules
(a) Direct access
In
the alternative to the application for leave to appeal, the
applicant seeks an order granting direct access for a declaration

that the Rules are inconsistent with the Constitution to the extent
that they do not properly allow a member or party in the
Assembly to
vindicate the right to have a motion of no confidence in the
President scheduled for a debate and vote as a matter
of urgency.
The
first question to resolve is whether direct access should be
granted. It would be granted only if it is in the interests of

justice to do so. This Court must be persuaded that there are
special circumstances that warrant bypassing other courts and
thereby hearing the dispute as a court of first and last instance.
24
In
Bruce,
this Court stated that in granting an application for
direct access the interests of justice requirement will ordinarily
be met
only where exceptional circumstances exist.
25
For the existence of exceptional circumstances there must, in
addition to other factors, be sufficient urgency or public
importance,
and proof of prejudice to the public interest or the
ends of justice and good government, to justify such a procedure.
26
An additional consideration is whether there are any issues, and
evidence relating to those issues, that would be better isolated
and
clarified through the multi-stage judicial process.
27
We
have already determined that the dispute raises a constitutional
issue that has a grave bearing on the soundness of our
constitutional
democracy. The constitutional validity of the Rules
is interwoven with the matters that arise in the appeal. Both invoke
constitutional
construction of section 102(2) and the Rules that
regulate the ordering and scheduling of the business of the
Assembly. Hearing
the direct access application together with the
appeal would avoid prolonged and piecemeal litigation and bring
certainty over
the constitutional validity of the affected Rules.
Furthermore, the issues before us are crisp and well-defined, and do
not raise
disputes of fact or require factual resolution. Moreover,
we are here not confronted with a dispute related to customary law

or the common law, but one that requires an interpretation of the
Rules in light of the Constitution.
None
of the parties have opposed this Court hearing the constitutional
challenge to the Rules. All parties were given an opportunity
to
deal with the applicant’s submissions in written and oral
argument. In our view, it is in the interests of justice to
hear and
dispose of the constitutional challenge.
(b) Should the declaratory order sought be granted?
The
Speaker and the Chief Whip resist the granting of the declaratory
order sought by the applicant but for different reasons.
I shall now
deal with the constitutional challenge that the Rules are
inconsistent with the Constitution because they fail to
provide for
a vindication of the entitlement of a member of the Assembly
provided for in section 102(2).
A
good starting point to this enquiry would be Chapter 5 of the
Constitution, at the end of which section 102 is located. This

Chapter describes and regulates the executive authority of the
Republic which is vested in the President who exercises it together

with the other members of the Cabinet. The Chapter also provides for
the election by the Assembly, term of office and removal
of the
President. The removal may occur by a resolution of the Assembly
adopted with a supporting vote of at least two thirds
of its members
and only on grounds of serious violation of the Constitution,
serious misconduct or inability to perform the functions
of office.
28
The removal provisions may be called impeachment provisions.
Besides
the removal or impeachment of a President, the term of office may
also come to an end when she or he no longer enjoys
the support of
the majority of members of the Assembly. A motion of no confidence
adopted by a majority of the Assembly would
compel the President,
members of the Cabinet and Deputy Ministers to resign.
29
Thus the scheme of the Constitution is that the President is elected
into and may be removed from office by a resolution of a
majority of
members of the Assembly.
30
The
Constitution requires that the Assembly must have a procedure or
process which would permit its members to deliberate and
vote on a
motion of no confidence in the President. In order for members of
the Assembly to vote on a motion, the Rules of the
Assembly must
permit a motion of no confidence in the President to be formulated,
brought to the notice of members of the Assembly,
tabled for
discussion and voted for in the Assembly. The voting on a motion is
done by members of the Assembly collectively.
However, section
102(2) is silent on the source or origin of the motion of no
confidence. Given the text and purpose of the provision,
in our
judgment, any member of the Assembly has the right to formulate and
request to have a motion of no confidence serve before
and voted for
in the Assembly.
Section
102(2) must be understood also in light of other related
provisions.
31
Significantly, 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.”
In
the first instance, the Assembly “is elected to represent the
people and to ensure government by the people under the

Constitution.” A motion of no confidence in the President is a
vital tool to advance our democratic hygiene. It affords
the
Assembly a vital power and duty to scrutinise and oversee executive
action. The Constitution does not set a time or preconditions
for
when the Assembly may vote on a motion of no confidence in the
President. The ever present possibility of a motion of no
confidence
against the President and the Cabinet is meant to keep the President
accountable to the Assembly which elects her
or him. If a motion of
no confidence in the President were to succeed, he or she and the
incumbent Cabinet must resign. In effect,
the people through their
elected representatives in the Assembly would end the mandate they
bestowed on an incumbent President.
The
right that flows from section 102(2) is central to the deliberative,
multiparty democracy envisioned in the Constitution.
32
It implicates the values of democracy, transparency, accountability
and openness. A motion of this kind is perhaps the most important

mechanism that may be employed by Parliament to hold the executive
to account, and to interrogate executive performance.
The
High Court was correct in stating that to move a motion of no
confidence is manifestly a constitutional right, which is accorded

to both the majority and minority parties.
33
The better view may be that the right to initiate a motion of no
confidence is accorded to every member of the Assembly who is

entitled to seek, by a motion of no confidence, to garner support
for a majority vote of the Assembly.
This
approach to motions of no confidence is consistent with foreign
practice, including in India, Canada, the United Kingdom
and other
Commonwealth jurisdictions,
34
which recognise the important function of motions of no confidence
in parliamentary democracies. Ample academic writing on

parliamentary democracies shows how motions of no confidence are
considered crucial in determining whether parliament has confidence

in the government, even where the motion has little prospect of
success.
35
This
entitlement flows readily from section 102(2) and its exercise may
be regulated by the Assembly, but its Rules may not deny,
frustrate,
unreasonably delay or postpone the exercise of the right. It seems
to me plain that when a member of or a political
party within the
Assembly, acting alone or in concert with other members of the
Assembly, tables a motion of no confidence in
terms of section
102(2) in accordance with the Rules, the motion deserves the serious
and prompt attention of the responsible
committee or committees of
the Assembly and, in the last resort, of the Assembly itself. The
responsible committee or the Assembly
must take steps that ensure
that the motion is tabled and voted on without unreasonable delay.
Are the Rules consistent with section 102(2)?
The
Assembly has adopted extensive Rules to regulate its business.
Chapter 12 of the Rules provides for a committee system in
the
Assembly. It lists committees of the Assembly and provides for the
creation of other committees by resolution of the Assembly
or the
Rules Committee. Expectedly, the list includes the Programme
Committee whose composition and powers I have discussed earlier.
Let
it suffice to repeat that the primary functions and powers of the
Programme Committee include preparing and adjusting the
annual
programme of the Assembly, implementing Rules on scheduling or
programming of the business of the Assembly, and making
decisions to
prioritise or postpone any business of the Assembly.
36
The Rules have entrusted the Programme Committee with the power to
decide whether a motion of no confidence should be placed
on the
business of the Assembly.
Part
2 of Chapter 12 stipulates Rules applicable to committees generally.
Relevant for present purposes are Rules 129(2)(c) and
(d). They
provide:
“
(2)
The chairperson of a committee, subject to the other provisions of
these Rules and the directions of the committee —
. . .
(c) performs the functions,
tasks and duties and exercises the powers that the committee,
resolutions of the Assembly and legislation
may assign to the
chairperson;
(d) in the event of an equality
of votes on any question before the committee, must exercise a
casting vote in addition to the chairperson’s
vote as a
member.”
The
plain meaning of Rule 129(2)(d) seems to be that any question before
the Programme Committee must be decided by a majority
vote subject
to the chairperson having a deliberative and a casting vote in the
event of an equality of votes. Strange as it
may seem, the
applicant, so too the Speaker and the Chief Whip, submitted that the
Programme Committee takes decisions, not by
vote, but by consensus.
They contended that consensus in decision-making was a practice
which the Programme Committee followed.
If there was no consensus,
no decision would be arrived at and the Programme Committee would
consider its deliberations deadlocked.
Confronted
by these submissions, the High Court held that the inconsistency
between the Rules and the practice within the Programme
Committee
matters not, because if a deadlock were to be resolved by reference
to the majority vote, the outcome could still be
contrary to section
102(2). A vote could allow the majority on the Committee to block an
effort by the minority to schedule a
motion of no confidence for
debate before the Assembly. The High Court concluded there was no
mechanism in the Rules to resolve
a deadlock caused by either an
absence of consensus or by a majority decision that refused to
entertain a motion of no confidence.
This, the High Court called a
lacuna in the Rules which could frustrate the enforcement of the
entitlement in section 102(2).
37
The
applicant supported the reasoning of the High Court and contended
that the Rules were limping because they had omitted to
provide for
a Rule to resolve the inability of the Programme Committee to arrive
at a decision on whether to schedule a motion
of no confidence in
the President. In oral submissions before this Court, the Speaker
too submitted that there was indeed a lacuna
in the Rules. This
submission was in line with the written reports submitted by the
Speaker to this Court that the Rules were
being amended to give
effect to section 102.
The
Chief Whip took an opposite view. He contended that the Rules as
they stood adequately covered the field, and that there was
no gap
or omission on the scheduling and debating of a motion of no
confidence in the President. He submitted that a party seeking
to
schedule a motion of no confidence in the President must follow the
existing Rules which have placed the authority to schedule
the
business of the Assembly in the Programme Committee. That Committee
adopts its decisions by the consensus of its members.
If there is no
consensus, that is no more than a function of the political
horse-trading over the affairs of the Assembly.
The
core of the submission is best rendered in the Chief Whip’s
own words:
“
A
motion of no confidence in the President should be scheduled and
debated, if there is a political agreement between the parties.
If
there is no political agreement on the scheduling of the motion, then
that is the end of the matter and the motion will not
be scheduled or
debated. However where there is political agreement, a motion may be
scheduled and debated within a reasonable
time subject to the work of
the Assembly and subject to practicality. In fact where the parties
agree, a motion of no confidence
in the President may be scheduled
and debated on an urgent basis subject to the rules and practicality.
The power to determine
whether or not the motion should be treated as
urgent must always lie with the National Assembly and not elsewhere.”
The
Chief Whip is in effect arguing that whether or not a motion of no
confidence will be scheduled and debated, and any agreement
about
when it will be debated “is a product of political
negotiations and agreement.” He describes the process:
“
All
the work of the National Assembly is in the national interest. The
legislative duties and oversight responsibilities loom large
in the
work of the National Assembly. That, however, does not mean that all
motions must be scheduled for debate and voting urgently.
Some will
be scheduled and debated urgently, others will not. It all depends on
a number of considerations, including the political
interests of the
parties involved. The scheduling of motions is a product of political
negotiations and agreement. In some instances,
parties agree that a
certain motion must be scheduled for debate, in other times they
disagree and the motion is not scheduled
for debate. Just as in its
legislative work, Parliament may agree that a certain law is
necessary and in that regard, process such
a law without any
difficulties because of the political agreement. In other times,
parties disagree on whether the law is necessary
or whether the law
is constitutional. What happens in order to settle the debate is that
Parliament puts it to a vote after a debate.
Those that do not like
the law vote against it and those that like the law, vote in its
favour. Where a majority is achieved, the
law will pass, where it is
not, the law will not pass. Committees operate on relatively the same
principles. Where there is disagreement
on a motion, the Committee
reports to the National Assembly and the matter may be put to a vote
in order to diffuse the disagreement.”
On
that reasoning, the decision to schedule a motion and the time when
it may be debated are both “within the gift of the
majority
party”. In some instances that decision could indeed be within
the ‘gift of a minority party’ that
may choose to
withhold its concurrence on whether a motion of no confidence should
be heard and voted on.
I
agree with the High Court that a vital constitutional entitlement to
move a motion of no confidence in the President cannot
be left to
the whim of the majority or minority in the Programme Committee or
any other committee of the Assembly. It would be
inimical to the
vital purpose of section 102(2) to accept that a motion of no
confidence in the President may never reach the
Assembly except with
the generosity and concurrence of the majority in that Committee. It
is equally unacceptable that a minority
within the Committee may
render the motion stillborn when consensus is the decision-making
norm. It would have been an easy matter
for the Constitution to
specify that the scheduling of a motion of no confidence in the
President is subject to political negotiations,
lobbying, bargaining
and agreement between the parties of the Assembly. It does not do
so.
Lobbying,
bargaining and negotiating amongst political parties represented in
the Assembly must be a vital feature of advancing
the business and
mandate of Parliament conferred by Chapter 4 of the Constitution.
However, none of these facilitative processes
may take place in a
manner that unjustifiably stands in the way of, or renders nugatory,
a constitutional prescript or entitlement.
That is so, because our
Constitution is supreme and demands that all law and conduct must be
consistent with it. We may not hold
that an entitlement that our
Constitution grants is available only at the whim or discretion of
the majority or minority of members
serving on the Programme
Committee or any other committee of the Assembly. A vote on a motion
of no confidence in the President
must occur in the Assembly itself.
Mogoeng
CJ, writing for the majority in
Ambrosini
on the validity of
comparable Rules of the Assembly, stated:
“
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. 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. 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.”
38
(Footnotes omitted.)
It is
indeed so, that when the Constitution entitles a member or party to
take a particular step or embark on a process in the
Assembly, the
Rules may prescribe a procedure for the envisaged process. What the
Rules may not do is to thwart or frustrate
the steps and thereby
negate a constitutional entitlement.
In
our view, a reading of the Rules as a whole reveals that there is
indeed a lacuna in the Rules regulating the decision-making
and
deadlock-breaking mechanism of the Programme Committee charged with
the power to arrange the programme of the Assembly. To
the extent
that the Rules regulating the business of the Programme Committee do
not protect or advance or may frustrate the rights
of the applicant
and other members of the Assembly in relation to the scheduling,
debating and voting on a motion of no confidence
as contemplated in
section 102(2), they are inconsistent with section 102(2) and
invalid to that extent.
Even
if Rules 187 to 190, that regulate the conduct of the business of
the Programme Committee, read together with Rule 129(2)(d),

regulating the conduct of all committees of the Assembly, were
construed to require that the decision of the Programme Committee

must be made by a majority vote, the lacuna would persist. A
majority decision of the Programme Committee on the scheduling of
a
motion of no confidence could frustrate the vindication of the right
envisaged in section 102(2). This would be so because,
again as in
the case of a consensus requirement, it would be within the
discretion and generosity of the majority within the
Programme
Committee whether a motion of no confidence in the President would
ever see the light of day.
Is a motion of no confidence inherently urgent?
The
applicant contended that a motion of no confidence is always urgent
and must take precedence over all other business of the
Assembly.
The applicant urged us to have regard to the practice of foreign
parliaments as the English, Australian and French
parliaments. It is
so that in several other democracies, a motion of no confidence is
dealt with as a matter of precedence and
enjoys priority over other
parliamentary business. For instance, in Australia the importance of
a motion of no confidence is
recognised by the rule that it takes
priority over other business until disposed of.
39
In France, the rules provide time restrictions for when a motion of
no confidence must be debated once tabled.
40
She
also submitted that, at the very least, a motion of no confidence
should be treated with the same urgency as Parliament’s

approval of a declaration of national defence under section 203 of
the Constitution, which requires the President to summon Parliament

to an extraordinary sitting within seven days of a declaration of
national defence if Parliament is not then sitting.
41
In a
careful and persuasive argument, the Chief Whip referred us to the
multi-party committee system of the Assembly and how the
Rules are
meant to ensure effective and efficient workings of the Assembly. He
made the further point that important as a motion
of no confidence
is, it has serious consequences for the President, the Cabinet and
the ruling party. All concerned within the
Assembly must be afforded
the space to consider and prepare for the pending debate on the
motion.
Our
approach to the urgency of a motion of no confidence in the
President must be coloured by the consideration that the Assembly

has the constitutional authority to “determine and control its
internal arrangements, proceedings and procedures.”
42
It is unnecessary to go as far as the High Court, that a motion of
no confidence in the President “is inherently urgent”

and must be debated and voted on in the Assembly urgently.
43
It is sufficient to state that the motion must be accorded priority
over other motions and business by being scheduled, debated
and
voted on within a reasonable time given the programme of the
Assembly. Once sponsored in a manner prescribed by the Rules,
the
Assembly must take prompt and reasonable steps to ensure that the
motion is scheduled, debated and voted on without undue
delay.
Should the direct access application be refused because the
Assembly is said to be correcting the defect?
The
Speaker urged us to dismiss the direct access application because
the applicant should have exhausted internal remedies by
approaching
the Assembly to resolve the deadlock in the Programme Committee
before rushing to court. He also argued that there
was no need for
this Court to make an order even if it found for the applicant on
the lacuna in the Rules because the Assembly
was reforming its Rules
to correct the defect. He in effect argued that the exercise of
jurisdiction would offend the separation
of powers doctrine in light
of the ongoing negotiations within the Assembly.
More
than three months before the hearing, this Court issued directions
requesting the Speaker to file a report by Thursday, 14
March 2013
on the progress achieved in the process of “ensuring that
motions of no confidence [in the President] are appropriately

provided for in the Rules”. At the time of the hearing, two
reports filed by the Speaker and Deputy Speaker, pursuant to
the
directions, recorded that the parties had met but had not reached
consensus on the possible content of revised Rules. From
the reports
the reason for not reaching an agreement on the draft Rules is
somewhat obscure.
44
The reports submitted to the Court indicated that the main points of
contention related to whether the Speaker should have discretionary

power over the scheduling of motions of no confidence and to a
reasonable timeframe for scheduling and voting on a motion of
no
confidence.
The
lack of consensus on the draft Rules is not surprising. Given their
respective submissions in this Court, there are fundamental

differences between the applicant and Chief Whip on whether the
Rules are constitutionally deficient and therefore what the Rules

should provide for in relation to a motion of no confidence in the
President. If this dispute is not resolved by this Court,
the
differences are likely to persist, to the detriment of a member of
the Assembly who wishes to exercise the right envisaged
in section
102(2).
I am
therefore unable to agree with the contention of the Speaker that
because the parties are in the process of remedying the
alleged
lacuna in the Rules the direct access application should be
dismissed. First, the differences between the applicant and
Chief
Whip make it most improbable that the lacuna will be corrected.
Second, once we have found, as we have, that the Rules
regulating
the business of the Programme Committee are unconstitutional, we
must so declare. An order of constitutional invalidity
is not
discretionary. Once the Court has concluded that any law or conduct
is inconsistent with the Constitution, it must declare
it invalid.
45
I
also do not agree with the submission that a declaration of
invalidity would trench upon the separation of powers doctrine.
An
order of constitutional invalidity would not be invasive because it
is declaratory in kind. The Court would not be formulating
Rules for
the Assembly. The Court would be properly requiring the Assembly to
remedy the constitutional defect that threatens
the right of members
of the Assembly.
46
Conclusion
In
all the circumstances, the direct access application must succeed.
The applicant is entitled to a declaratory order that Chapter
12 of
the Rules is inconsistent with section 102(2) of the Constitution to
the extent that it fails to make provision for an
unhindered
exercise by a member of the Assembly, acting alone or in concert
with other members, of the right to have the Assembly
schedule,
deliberate and vote on a motion of no confidence in the President.
In our view, it would be just and equitable to suspend
the
declaration of invalidity for six months in order to afford the
Assembly the opportunity to remedy the defect in Chapter
12 of the
Rules.
Exclusive jurisdiction in terms of section 167 of the Constitution
The
applicant sought a declaratory order in terms of section 167(4)(e)
of the Constitution that Parliament has failed to fulfil
a
constitutional obligation by not providing rules necessary for
tabling, debating and voting on the motion of no confidence
in the
Assembly so as to vindicate a member of Parliament’s right
under section 102(2) of the Constitution. For purposes
of the
declaratory order sought under section 167(4)(e), the applicant does
not need leave to approach this Court because her
claim has been
brought on the footing that this Court has original and exclusive
jurisdiction. Whether that is in fact so, is
quite another matter.
47
Given
the outcome of the direct access application, we expressly refrain
from deciding whether the requirements of section 102(2)
create an
obligation on the Assembly within the meaning of section 167(4)(e).
Resolving that dispute must wait for another day.
Leave to cross-appeal against the costs order
The
High Court made no order as to costs. The Speaker seeks leave to
cross- appeal the costs order. The Speaker contends that
he was
substantially successful before the High Court, which relied mainly
on his arguments in dismissing the urgent application.
He adds that
the applicant launched the application with inappropriate haste and
that in any event, the minority parties spurned
an opportunity
earlier this year to resuscitate and debate a motion of no
confidence in the President. The Speaker further contended
that the
applicant raised the constitutionality of the Rules for the first
time in this Court.
It is
in the interests of justice to allow the Speaker to cross-appeal the
costs order of the High Court. The cross-appeal is
closely allied to
the applicant’s appeal and the application for direct access
in this Court. It is in the interest of
justice that that the
cross-appeal be decided in the present proceedings in order to reach
finality.
The
Speaker was substantially successful in the High Court. That Court
placed considerable reliance on the arguments advanced
by him. The
applicant launched the urgent application with inappropriate haste.
The applicant rushed to court and launched these
proceedings
regardless of the Speaker’s reasonable request for time to
take legal advice and explore the possibility of
the Assembly
sitting beyond its year-end cut-off date in order to hear the motion
of no confidence. Because the initial application
was overhasty, the
appeal too became moot. In the circumstances, it would be
appropriate that the applicant bear the costs of
the Speaker in the
High Court and of her unsuccessful appeal in relation to the Speaker
in this Court.
Cross-appeal against the
costs order, and two findings of the High Court
The
Chief Whip also seeks leave to cross-appeal against the costs order
of the High Court and its findings that (i) a motion of
no
confidence in terms of section 102(2) “is inherently urgent”
and “should be treated as a matter of urgency”,
and (ii)
the Rules do not provide for a determination of what constitutes
‘urgency’.
For
the reasons we have advanced in relation to the cross-appeal of the
Speaker, it is in the interests of justice to grant leave
to
cross-appeal on costs. However, in the case of the Chief Whip, the
appeal against the costs order of the High Court must fail.
Unlike
the Speaker, the Chief Whip resisted and denied that the applicant
was entitled to have a motion of no confidence tabled
in the
Assembly. That attitude of the Chief Whip, in large measure,
precipitated the applicant’s rush to Court. It was
only at the
hearing that the Chief Whip appeared to concede the right of the
applicant to have a motion of no confidence tabled
before the
Assembly. Despite this concession in the High Court, before us the
Chief Whip persisted in the attitude that the Rules
do not evince a
lacuna and that the right of a member of the Assembly to have a
motion of no confidence voted on by the Assembly
requires the
consent of the majority party. The Chief Whip’s cross-appeal
on costs in the High Court must fail.
In
addition, the Chief Whip sought leave to cross-appeal against the
two findings in the reasoning of the High Court. There
is no
justification for granting the Chief Whip leave to cross-appeal on
this basis. An appeal of that kind is incompetent
in law.
48
The Chief Whip does not impugn the dismissal order of the High
Court. Although it was granted for reasons different to those
he
advanced before the High Court, the Chief Whip supports the order.
Thus, his cross-appeal is not directed at reversing or
changing the
order of the High Court but at altering or discrediting a part of
its reasoning without targeting or seeking to
reverse its order.
The
cross-appeal has no merit and must be refused.
Order
The
following order is made:
1. The applicant’s application for leave to appeal is granted.
2. The appeal is dismissed.
3. The applicant’s application for direct access is granted.
4. It is declared that Chapter 12 of the Rules of the National
Assembly is inconsistent with section 102(2) of the Constitution
to
the extent that it does not provide for a political party
represented in, or a member of, the National Assembly to enforce
the
right to exercise the power to have a motion of no confidence in the
President scheduled for a debate and voted upon in the
National
Assembly within a reasonable time, or at all.
5. The declaration of constitutional invalidity in paragraph 4 above
is suspended for a period of six months, to allow the National

Assembly to correct the defect.
6. The first respondent’s application for leave to
cross-appeal on costs is granted and the cross-appeal is upheld.
7. The applicant is directed to pay the costs of the first
respondent in the High Court, and in this Court only in relation to

the applicant’s dismissed appeal.
8. The second respondent’s application for leave to
cross-appeal is granted only in respect of costs, but the appeal is

dismissed.
9. Save for paragraph 7 above, no order as to costs is made.
JAFTA J (Mogoeng CJ, Mhlantla AJ and Zondo J concurring):
Introduction
Political
issues must be resolved at a political level. Our courts should not
be drawn into political disputes, the resolution
of which falls
appropriately within the domain of other fora established in terms
of the Constitution. A timely warning was
issued in this case by
Davis J in a judgment delivered by the High Court.
49
He cautioned:
“
There
is a danger in South Africa, however, of the politicisation of the
judiciary, drawing the judiciary into every and all political

disputes as if there is no other forum to deal with a political
impasse relating to policy or disputes which clearly carry

polycentric consequences beyond the scope of adjudication. In the
context of this dispute, judges cannot be expected to dictate
to
Parliament when and how it should arrange its precise order of
business matters. What courts can do, however, is to say to

Parliament: ‘you must operate within a constitutionally
compatible framework; you must give content to section 102 of the

Constitution; you cannot subvert this expressly formulated idea of a
motion of no confidence. However, how you allow that right
to be
vindicated is for you to do, not for the courts to so determine’.”
50
What
happened in this case provides evidence that supports the
observation made by the High Court. A simple process of tabling
a
motion for consideration in the Assembly has triggered striking
errors and ineptitude arising from the misinterpretation
and
misapplication of the Rules. As illustrated later in this judgment,
the Rules give a right to every member to table motions
in the
Assembly. Acting in terms of the relevant Rule, the applicant
tabled a motion of no confidence in the President. Consistent
with
that Rule, the motion was put on the Assembly’s agenda by
placing it on the Order Paper. But instead of debating
and voting
on the motion, the Assembly referred it to the Programme Committee
for that Committee to place the matter on the
Assembly’s
agenda in circumstances where the motion was already on the agenda
of the Assembly.
This
decision set in motion a series of errors. Without explanation, the
matter was not referred to the Programme Committee
but was first
submitted to the Chief Whips’ Forum which failed to reach
consensus. It was then forwarded to the Programme
Committee whose
majority membership comes from the opposition parties on whose
behalf these proceedings were instituted. On
the day the matter was
considered by the Committee, some members coming from the
opposition parties did not attend, even though
their parties felt
strongly about the motion. As a result the majority of members
present were from the ruling party. The Committee
applied a
practice that required decision-making to be made by way of
consensus instead of voting which is provided for in
the Rules and
the Constitution. As this judgment shows, the challenge of
invalidity mounted by the applicant arose from the
misapplication
of one Rule and the failure to apply another.
Later
when an offer was made to the applicant that her motion would be
debated and voted on, her party rejected it, indicating
that it was
no longer interested. By that time all parties had accepted that
the Assembly’s Rules needed to be reformed
to provide for a
specific regulation of motions of no confidence in the President.
The process of amending the Rules is at
an advanced stage. It could
not be finalised because members of the relevant Committee failed
to attend the last meeting scheduled
to decide on the amendments
and as a result the Committee was inquorate. Given this background,
the question that arises is
whether this Court should entertain the
matter.
Should
the matter be entertained?
I
have read the judgment prepared by the Deputy Chief Justice (main
judgment). I agree that the matter raises constitutional
issues and
therefore meets the jurisdiction requirement. But, in my respectful
opinion, all applications advanced by the applicant
must fail,
primarily because it is not in the interests of justice to grant
them. The interests of justice is the standard
applicable to the
applications for leave to appeal and direct access. Regarding the
claim for direct access, the applicant
has failed to show that it
falls within the exclusive jurisdiction of this Court.
I
begin by setting out the scheme created by the Constitution and the
Rules. This analysis will be followed by the facts necessary
for
the findings made in this judgment. In this regard I must record my
gratitude to the main judgment for its comprehensive
rendition of
the facts.
The
scheme
Section
102(2) empowers the Assembly to pass a vote of no confidence in the
President. Such vote must be supported by a majority
of the members
of the Assembly. A consequence of the vote of no confidence
envisaged in the section is that the President and
the entire
Cabinet must resign from office. Section 102(2) provides:
“
If
the National Assembly, by a vote supported by a majority of its
members, passes a motion of no confidence in the President,
the
President and the other members of the Cabinet and any Deputy
Ministers must resign.”
Notably
the power to pass the motion is vested in the Assembly, acting as a
collective, through its members. The section does
not empower
political parties to pass a motion of no confidence in the
President. It is therefore incorrect to analyse the
process
followed in pursuing motions of this kind by making reference to
political representation. That process must be seen
in the context
of membership of the Assembly and not of the parties represented in
it. This is so because it is the Assembly,
and it alone, which is
the repository of the power to pass motions of no confidence in the
President. Where a power is conferred
on individual members of the
Assembly, the Constitution expressly says so.
51
But because the Assembly can only act through
its members, these members have a right in terms of section 102 to
table a motion
of no confidence in the Assembly for the exercise of
the power.
The
Constitution does not prescribe how and what form motions of no
confidence in the President should take. Nor does it impose
an
obligation on the Assembly to make rules for the exclusive
regulation of procedures applicable to motions of this nature.
What
is implicit in section 102 though is the fact that the Assembly may
make rules in terms of which the power is exercised.
Indeed the
Rules facilitate the tabling of motions contemplated in this
section.
Rules
regulate how motions of no confidence are processed, irrespective
of whether they are directed at the President, Cabinet
or another
body. Rule 94 gives every member the right to propose any motion
for discussion and approval by the Assembly.
52
Rule 97 prescribes that every motion requires
notice but lists exceptions to this requirement. None of those
exceptions applies
to the present case.
Most
importantly, Rule 98 sets out the procedure to be followed when a
member gives notice of a motion. It provides:
“
(1)
When giving notice of a motion a member shall—
(a) read it aloud and deliver
at the Table a signed copy of the notice; or
(b) deliver to the Secretary a
signed copy of the notice on any Parliamentary working day, for
placing on the Order Paper.
(2) Written notices of motion
delivered to the Secretary after 12:00 on any Parliamentary working
day may be placed on the Order
Paper of the second sitting day
thereafter and not earlier, unless in a particular case the Speaker
determines otherwise.
(3) Except with the unanimous
concurrence of all the members present, no motion shall be moved on
the day on which notice thereof
is given.”
It
is plain from this Rule that a member giving notice of a motion is
required to read it aloud and deliver a signed copy of
the notice
at the table of the Secretary who must place the matter on the
Order Paper. Notices delivered to the Secretary after
12h00 may be
placed on the Order Paper for the subsequent second sitting day
unless for some reason the Speaker decides otherwise.
A motion
cannot be moved on the day of giving notice except with the
unanimous concurrence of all members present. This caters
for
urgent motions to be debated and approved without delay. Motions
concerning the privileges of the Assembly take precedence
over
other motions and orders of the day.
53
Implicit
in these Rules is the fact that a member whose motion has been
placed on the Order Paper is entitled to have it moved
on the
appointed day unless such member withdraws the motion. The
withdrawal may be effected without notice. But if a motion
is not
moved, it remains on the agenda until it lapses on the last day of
the Assembly’s sitting in a year.
54
Relevant facts
It
is now convenient to set out what happened in the Assembly in
relation to the motion which the applicant wished to move.
On 8
November 2012, the applicant acting in terms of Rule 98(1)(a), gave
notice of the motion by tabling it in the Assembly.
Because the
Assembly did not sit on Friday 9 November and Monday 12 November,
the motion was placed on the Order Paper
of the next sitting day,
13 November 2012. On that day the motion was read again for
consideration by the Assembly. But
its consideration was made
subject to the motion being scheduled for debate by the Programme
Committee. It is not clear in
terms of which Rule this procedure
was adopted. However, it is apparent from the Speaker’s
affidavit filed in the High
Court that the Assembly followed a
practice not provided for in the Rules, in dealing with the motion.
In
accordance with the practice in question, the motion was first
referred to the Chief Whips’ Forum.
55
This forum is established in terms of Rule 217.
The Forum is chaired by the Chief Whip and its functions and powers
are to discuss
and coordinate matters for which the whips are
responsible and those on which the Speaker may consult it, whenever
appropriate.
But it is not clear why the motion was referred to the
Forum when the Assembly was to consider it subject only to the
condition
that it be scheduled by the Programme Committee.
Dealing
with the course followed by the applicant’s motion, the
Speaker’s affidavit is confusing. In relevant part
the
Speaker states:
“
The
motion was tabled in the House by being read out loud on Thursday,
8 November 2012.
Since the National Assembly did
not sit on Friday, 9 November 2012, and Monday, 12 November 2012,
the motion was published in
the Order Paper of the next sitting day,
i.e. Tuesday, 13 November 2012, under the rubric ‘
Further
Business
’
.
That having happened, the
motion was ready for consideration by the National Assembly subject
to scheduling by the Programming
Committee.
In accordance with National
Assembly practice, it was first discussed in the Chief Whip’s
Forum (‘
the CWF’
), established in terms of rule
217 of the Rules, which is responsible for political consultation
among parties in the National
Assembly, also as to whether and when
motions should be scheduled.
In the ordinary course motions
go to the Programme Committee for scheduling after the CWF has come
to agreement in this regard.
Since the CWF was,
in casu
,
unable to reach agreement at its meeting on Wednesday, 14 November
2012, the matter was referred to the Programme Committee
for
consideration at its 15 November 2012 meeting without any
recommendation as to whether and when it should be put on the Order

Paper.”
What
emerges from the Speaker’s evidence, is that in terms of the
practice he refers to, it is not only the Forum which
schedules
motions. Instead, from the Forum motions are forwarded to the
Programme Committee for scheduling. It is not clear
why two
committees have to perform the same function, one committee after
the other.
The
Forum was unable to reach agreement on whether to schedule the
motion at its meeting on 14 November 2012. The motion was
then
referred to the Programme Committee for its consideration on 15
November 2012. According to the Speaker, the Programme
Committee
too could not reach consensus on whether to schedule the motion for
debate. Strangely, in this regard and as it appears
from the
Speaker’s statement quoted above, he says the Programme
Committee could not make a recommendation on whether
and when the
motion should be put on the Order Paper. This illustrates the
misapplication of the Rules in terms of which the
motion had
already been placed on the Order Paper.
Furthermore,
the record shows the motion was not debated and voted on by the
Assembly only because the Forum and the Programme
Committee did not
reach consensus on whether to schedule it for debate. We are told
that the Programme Committee decides matters
sent to it by means of
consensus. The source of this is a practice which is contrary to
Rule 129.
56
This Rule provides that decisions of committees
are taken by voting and where there are equal votes, the
chairperson has a casting
vote. The application of this Rule to the
Programme Committee has not been excluded. Whenever the application
of a particular
Rule to a committee is excluded, the Rules
expressly say so. For example, Rule 188 prohibits the application
of Rule 125
to the Programme Committee.
57
The
present record does not cast any light on why a mere practice was
given precedence over the Rules. What emerges from the
reading of
evidence is that the parties before us did not have a good
understanding of the Rules under which they operate.
The analysis
set out above illustrates this point. The important question that
arises in this regard is whether the failure
to reach consensus by
the Programme Committee in circumstances where consensus is not
required by the Rules, renders the Assembly’s
Rules
inconsistent with the Constitution. I return to this issue below.
Following
the Programme Committee’s failure to reach consensus on
15 November 2012, the applicant addressed a letter
on the same
day to the Speaker, requiring him to table the motion or take
whatever steps necessary to ensure that the motion
was scheduled
for debate and vote in the Assembly on or before 22 November 2012.
The Speaker’s legal representatives
responded to this demand
by a letter dated 16 November 2012 wherein it was stated that
the Speaker was in Lesotho and
that he was seeking legal advice
from senior counsel on how to deal with the matter. The Speaker’s
legal representative
warned that the institution of an urgent
application in the High Court at that stage would be premature and
wasteful in view
of the fact that the deadlock in the Programme
Committee occurred the previous day.
In the
High Court
The
Speaker’s warning was not heeded and the applicant launched
an urgent application in the High Court, on the same day.
In it,
she sought an order directing the Speaker to take steps necessary
to ensure that the motion was scheduled for debate
and vote in the
Assembly, on or before 22 November 2012. Notably, no challenge was
raised against the constitutionality of
the Assembly’s Rules.
The affidavit supporting the claim was deposed to by the applicant.
She did not specify why the
debate had to be scheduled on or before
22 November, except that that date was the last sitting day of the
Assembly in the
year. But she asserted that Rule 2(1) of the Rules
empowers the Speaker to ensure that a motion such as the present is
scheduled
for consideration by the Assembly.
In
opposing the application, the Speaker reiterated among the issues
raised by him, that the applicant prematurely rushed to
court for
relief. He indicated that the deadlock in the Programme Committee
was to be reported to the Assembly for it to take
a decision on
whether to debate and vote on the motion. On the merits the Speaker
disputed that Rule 2(1) applied to this case.
He contended that the
Rule applies to situations not catered for in the Rules. He pointed
out these Rules regulate the tabling
and consideration of motions
in the Assembly.
The
High Court construed this Rule and concluded, correctly so, that it
did not apply to this case. Rule 2(1) empowers the Speaker
to
formulate a rule only in circumstances where the Assembly’s
Rules do not cover the situation dealt with and the rule
so
formulated by the Speaker remains in force until the Rules
Committee decides on the matter.
58
The tabling of a motion is a matter expressly
covered by the Assembly’s Rules and consequently does not
fall within the
ambit of Rule 2(1).
In
this Court
The
applicant approached this Court on the basis of urgency on
23 November 2012. In the main she sought two prayers.

First, she sought an order declaring that Parliament has failed to
fulfil its constitutional obligation under section 102(2)
of the
Constitution, “by failing to schedule a motion of no
confidence . . . in the President of the Republic of South
Africa .
. . as lodged by the Applicant on 8 November 2012, for debate and
vote in the National Assembly, within a reasonable
time as
contemplated by section 237 of the Constitution.”
Second,
the applicant sought leave to appeal directly to this Court against
the judgment of the High Court dismissing the application
for an
order directing the Speaker to take steps necessary to ensure that
the motion was scheduled for debate and vote on or
before 22
November 2012. In the alternative to this prayer, the applicant
sought direct access so as to ask for a declaration
that the Rules
are inconsistent with the Constitution and invalid “to the
extent that they do not protect the rights
of the Applicant, and
other members of the National Assembly, to have a motion of no
confidence in the President . . . in terms
of section 102(2) of the
Constitution accorded appropriate priority over other business”.
She also sought an order directing
the Speaker to ensure that the
motion was scheduled for debate, taking precedence over other
business on 7 December 2012. Lastly,
she sought an order declaring
that the motion did not lapse on 22 November 2012, in terms of
Rule 316(1) of the Assembly’s
Rules.
Some
of the orders sought were motivated by the findings and the
interpretation of section 102 by the High Court. Put differently,

the High Court’s judgment is the foundation on which these
claims were based. This much is clear from the applicant’s

affidavit filed in this Court. Having set out the High Court’s
findings the applicant said:
“
The
relief I seek in this application is necessitated by the importance
and urgency of the matters at hand, the special nature
of the
proceedings, and the nature of Davis J’s judgment and
order.
In the first instance, assuming
the correctness of Davis J’s finding that Parliament has
failed to fulfil a constitutional
obligation, I apply under Rule 11
of this Court, for a declaration to that effect, in terms of
section 172(1)(a) read with
167(4)(e) of the Constitution.
In addition, I apply for leave
to appeal directly to this Court under Rule 19(2) against
Davis J’s order of 22 November 2012
dismissing
my application; I appeal specifically against his finding that the
first respondent lacks the power to schedule a
motion of no
confidence in the President for debate in the National Assembly.”
What
is important for noting at this stage is that if the foundation to
these claims is faulty, the applicant would not have
shown
prospects of success. This is an important, although not decisive,
factor in determining whether it is in the interests
of justice to
grant direct access or leave to appeal.
This
Court considered the matter and concluded that it was not urgent.
Consequently an order dismissing the request that the
matter be
heard on the basis of urgency was issued on 30 November 2012. In
their affidavits the Speaker and the Chief Whip
supported the
scheduling of the motion for debate in February 2013 and pointed
out that a committee tasked with reviewing the
Rules had already
started the reform process. This Court issued directions regulating
the future conduct of the case.
59
This was done to cater for hearing the case in the event of it not
being resolved in terms of the process that was followed
in the
Assembly.
In
terms of those directions, the applications for leave to appeal and
direct access were set down for 28 March 2013 so as to
allow the
parties and the Assembly space and time to resolve the dispute. The
Speaker was required to file a report on 14 March
2013 setting out
“the process of ensuring that motions of no confidence are
appropriately provided for in the Rules”
of the Assembly.
Indeed, on that date the Speaker filed a detailed report, setting
out steps taken to amend the Rules. Of importance
in this regard is
the meeting of the National Assembly Rules Committee (Rules
Committee) on 22 February. There had been other
meetings before it
in which a research document on comparative international practices
was considered. At the meeting of 22
February, two proposals were
tabled, one by the opposition parties represented by the applicant
here, and the other by the
majority party – African National
Congress (ANC) – in the Assembly.
The
Speaker requested members on both sides to discuss the matter in an
attempt to achieve consensus. No agreement was reached
at that
meeting. The Rules Committee met again on 6 March 2013. Members
from the ANC tabled a new draft of amendments. Members
of the Rules
Committee representing opposition parties indicated that they had
no mandate on the new draft and that they needed
time to discuss it
with their parties. A further meeting was scheduled for 12 March
2013. It transpired at that meeting that
members needed more time
to consider the amendments. As a result the Rules Committee
concluded that it should reconvene on
19 March 2013. Meanwhile the
Speaker was authorised to submit the report on progress, required
by this Court. In it the Speaker
asked for leave to file a further
progress report on what occurred subsequently.
On
19 March 2013 the Rules Committee met and still no consensus was
reached and the meeting was adjourned to the following day.
The
Speaker expressed optimism that consensus would be found. He filed
a further affidavit placing the information before this
Court. In
view of this further report, the Court issued further directions
requiring an updated report to be filed by 22 March
2013.
As
the Speaker was out of the country, the Deputy Speaker filed the
report on 22 March 2013. This report dealt with what occurred
at
the meeting on 20 March 2013 which was chaired by her. No decision
was taken at the meeting because the Rules Committee
was inquorate.
Attached to the report, however, is a draft amendment of the
Assembly’s Rules, dealing specifically with
motions of no
confidence envisaged in section 102 of the Constitution.
60
What
is set out above illustrates clearly that steps have been taken to
amend the Assembly’s Rules. Possibly if the Rules
Committee
was quorate on 20 March 2013, the amendments could have been
adopted. The question that arises is whether in these
circumstances
it is necessary for this Court to make a pronouncement on a matter
that is so close to resolution. I will now
consider this issue and
the other claims made by the applicant to illustrate that it is not
in the interests of justice to
grant the relief sought.
Leave to appeal
Leave
to appeal may be granted if the case raises a constitutional issue
and it is in the interests of justice for leave to
be allowed.
Unquestionably this case meets the first requirement. It implicates
the power conferred on the Assembly to pass
a motion of no
confidence in the President.
But
I am not persuaded that it is in the interests of justice to grant
leave. The obstacle that stands in the way of leave here
is the
absence of prospects of success on the merits of the appeal. This
is so because the applicant has not asked, other than
impugning the
judgment of the High Court, that this Court pronounce on any
constitutional issue, to provide guidance for the
future. So, leave
is sought singularly to have the High Court’s order set
aside.
To
show lack of prospects it is necessary to re-trace what was sought
in the High Court and reasons for its order. The relief
sought by
the applicant there was limited to an order directing the Speaker
to take steps necessary to ensure that the motion
of no confidence
in the President was scheduled for debate and vote in the Assembly
on or before 22 November 2012. The applicant
contended that the
Speaker has, in terms of Rule 2(1), a residual power to do so. The
High Court construed this Rule and concluded,
correctly, that it
does not apply. Its reasoning in this regard is endorsed in the
main judgment.
Moreover,
as recorded in the main judgment, the applicant conceded that the
relief sought in the High Court has become moot
and she has
abandoned the request for a mandamus against the Speaker. However,
the applicant pursued leave on a narrow basis,
namely that the High
Court erred in holding that the Speaker has no power to schedule a
motion of no confidence, based on Rule
2(1). As mentioned, the High
Court was right in rejecting the proposition that Rule 2(1) gave
such power to the Speaker.
In
the absence of prospects, no purpose will be served by the granting
of leave here and therefore it is not in the interests
of justice
to do so. In
S v Boesak
61
this Court said:
“
A
finding that a matter is a constitutional issue is not decisive.
Leave may be refused if it is not in the interests of justice
that
the Court should hear the appeal. The decision to grant or refuse
leave is a matter for the discretion of the Court and,
in deciding
whether or not to grant leave, the interests of justice remain
fundamental. In considering the interests of justice,
prospects of
success, although not the only factor, are obviously an important
aspect of the enquiry. An applicant who seeks
leave to appeal must
ordinarily show that there are reasonable prospects that this Court
will reverse or materially alter the
decision of the [Supreme Court
of Appeal].”
62
(Footnotes omitted.)
Failure to fulfil an obligation
Section
167(4)(e) of the Constitution confers exclusive jurisdiction on
this Court to decide whether Parliament has failed to
fulfil a
constitutional obligation.
63
It is true that a litigant seeking adjudication of a claim of this
kind does not require leave for direct access. But the right
to
come to this Court does not depend on the mere say so of a litigant
that its claim falls within the exclusive jurisdiction
of this
Court. It must truly in law be a claim that falls within the ambit
of the exclusive jurisdiction provision. The applicant
must also
establish that there was a failure to fulfil the obligation in
question.
This
enquiry requires us to consider the nature and the basis of the
claim so as to determine if indeed it falls within exclusive

jurisdiction. The applicant has instituted a narrow claim that
expressly defines the manner in which the Assembly has failed
to
fulfil a constitutional obligation. In the notice of motion this
claim is framed in these terms:
“
Parliament
has failed to fulfil its constitutional obligations under
section 102(2) of the Constitution of the Republic of
South
Africa, 1996 (the ‘Constitution’), by failing to
schedule a motion of no confidence (the ‘Motion of No

Confidence’), in the President of the Republic of South
Africa, in terms of section 102(2) of the Constitution, as

lodged by the Applicant on 8 November 2012, for debate and vote in
the National Assembly, within a reasonable time, as is contemplated

by section 237 of the Constitution.”
For
the applicant to succeed in coming to this Court under exclusive
jurisdiction, she must show that section 102(2) imposes
a
particular obligation on the Assembly to perform a specified act.
64
This is so because the word “obligation” in section
167(4)(e) of the Constitution is given a narrow meaning so
as to
prevent conflict between this section and section 172.
65
Section
102(2) does not impose a duty on the Assembly to perform a specific
act or function. Instead it confers power on the
Assembly to pass a
motion of no confidence in the President if the motion is supported
by the majority of its members. Consequently
the alleged failure to
make Rules which specifically regulate the exercise of the section
102(2) power does not give rise to
a claim falling within the
exclusive jurisdiction of this Court. Nor did the Assembly fail to
schedule the motion. It was placed
on the agenda in terms of Rule
98. What was wrong was the decision to refer it to the Programme
Committee.
Direct Access
Permission
to approach this Court directly is granted in respect of
constitutional matters which fall under the jurisdiction
of other
superior courts as well. In other words the procedure applies to
cases which do not fall under the exclusive jurisdiction
of this
Court. The granting of access has its genesis in section 167(6) of
the Constitution.
66
Permission is discretionary and obtainable only if it is in the
interests of justice to grant direct access. The section expressly

gives this Court a discretion by requiring that cases of this kind
be brought to it with its leave, if it is in the interests
of
justice to do so.
But
underpinning the standard of the interests of justice are various
principles. First, since cases for which direct access
is sought
are matters in respect of which the Constitution confers
jurisdiction on other courts as well, a stringent test is
laid down
for by-passing the other courts and denying them the opportunity to
exercise a constitutionally ordained jurisdiction.
67
Consistent with this principle, an applicant for direct access is
required to show compelling reasons justifying the exercise
of the
discretion to permit direct access.
68
In
Bruce and Another v Fleecytex Johannesburg CC and Others
69
this Court affirmed the compelling reasons requirement. There the
Court said:
“
Under
the 1996 Constitution, High Courts as well as the Supreme Court of
Appeal have constitutional jurisdiction including the
jurisdiction
to make an order concerning the validity of the provisions of an Act
of Parliament. Although an order made by such
Courts declaring an
Act of Parliament to be invalid has no force unless confirmed by
this Court, the Court making the order may
grant a temporary
interdict or other temporary relief pending the decision of this
Court. The procedure contemplated by the 1996
Constitution is that
such orders of constitutional invalidity will be referred to this
Court for confirmation, and that appropriate
procedures in such
cases will be provided for by national legislation. This Court has
held that pending the enactment of such
legislation it has the
competence to give directions as to the procedures to be followed in
respect of such referrals. Bearing
in mind the jurisdiction of the
High Courts and the Supreme Court of Appeal, and the matters
referred to in paras [7] and [8]
of this judgment, compelling
reasons are required to justify a different procedure and to
persuade this Court that it should
exercise its discretion to grant
direct access and sit as a Court of first instance.”
70
(Footnotes
omitted.)
Second,
this Court does not ordinarily sit as a court of first and last
instance. It values the views of other courts and appreciates
that
the process of going through more than one court reduces the risk
of mistakes. Third, if the Court sits as a court of
first and last
instance, the losing party would be denied the right of appeal. In
Fleecytex
, this Court stated:
“
It
is, moreover, not ordinarily in the interests of justice for a court
to sit as a court of first and last instance, in which
matters are
decided without there being any possibility of appealing against the
decision given. Experience shows that decisions
are more likely to
be correct if more than one court has been required to consider the
issues raised. In such circumstances the
losing party has an
opportunity of challenging the reasoning on which the first judgment
is based, and of reconsidering and refining
arguments previously
raised in the light of such judgment.”
71
Therefore,
as was observed in
AParty and Another v Minister of Home
Affairs and Others; Moloko and Others v Minister of Home Affairs
and Another
72
there must be compelling reasons which move the Court to exercise
its discretion in favour of granting direct access. In that
case
direct access was refused in circumstances where the Court accepted
that the impugned legislation implicated an important

constitutional right, the right to vote. The Court refused direct
access on the basis that no compelling reasons were established
by
the applicants despite the fact that they were granted direct
access in respect of another claim for constitutional invalidity.

In respect of the other claim the Court reasoned that it was not
essentially sitting as a court of first and last instance
because
there was a judgment of the High Court in a similar matter where
the same issues were raised and the two cases were
heard on dates
that were close to each other.
Before
I consider whether in this case the applicant has met the test of
compelling reasons, I must make a few observations.
First, the
claim for a declaration that the Assembly Rules were inconsistent
with the Constitution was advanced as an alternative
claim to the
request for leave to appeal. What this means is that if the main
claim relating to leave succeeds, the alternative
claim on
constitutional invalidity falls away because one claim was an
alternative to the other.
73
They were not consecutive claims. Since the main
judgment grants leave, it ought not, in my respectful view, have
considered
the direct access claim. What is important is the fact
that the claim for constitutional invalidity was made dependent on
the
request for leave failing. In setting it out the applicant
said:
“
In
the alternative to my application for leave to appeal, I apply in
terms of Rule 18 for direct access to this Court, for a declaration

that the Rules of the National Assembly are inconsistent with the
Constitution and invalid to the extent that they do not properly

vindicate my rights and those of other members of the National
Assembly to have a Motion of no Confidence accorded appropriate

priority over other parliamentary business, and, accordingly,
scheduled for debate and vote as a matter of urgency, and in any

event not later than 7 December 2012.”
Second,
the Speaker argued that it is not in the interests of justice to
grant direct access because the Assembly was already
remedying “the
lacuna” by amending its Rules. The main judgment rejects this
argument as having no merit because,
so it holds, once this Court
finds that the impugned Rules are unconstitutional, it must declare
them invalid. For reasons
that follow I am unable to agree with
this finding.
The
first reason is that this Court is not obliged to enquire into the
validity of Rules which are the subject of reform by
the Assembly.
In these circumstances the Court does not have to determine the
constitutionality of the Rules, which are about
to change to cater
for the very complaint raised by the applicant. The declaration of
invalidity will serve no useful purpose
because the parties
concerned agree that the Rules need to be amended and how this is
to be done cannot be effected by this
Court but by the Assembly
which is mandated by the Constitution to make its own Rules.
74
In
my view it is not in the interests of justice to grant direct
access to the applicant to seek nothing more than a declarator
over
a matter which is already being addressed by the competent
authority. Scarce judicial resources should not be spent on
matters
such as the present.
75
It is certainly not in the interests of justice
for 11 Judges of the highest Court to entertain matters where the
cause of the
complaint is being addressed by a competent authority.
In
J T Publishing (Pty) Ltd and Another v Minister of
Safety and Security and Others
76
this Court said:
“
Section
98(5) admittedly enjoins us to declare that a law is invalid once we
have found it to be inconsistent with the Constitution.
But the
requirement does not mean that we are compelled to determine the
anterior issue of inconsistency when, owing to its wholly
abstract,
academic or hypothetical nature should it have such in a given case,
our going into it can produce no concrete or tangible
result,
indeed
none whatsoever beyond the bare declaration
.”
77
(Footnote omitted and emphasis added.)
Moreover,
the principle of separation of powers forbids the Judiciary from
intervening in matters that fall within the domain
of Parliament
except where the intervention is mandated by the Constitution.
78
This is what our constitutional order requires. Therefore in
exercising their review power, the courts should always observe

constitutional bounds within which they are permitted to act. For
the Constitution is not only supreme but also binds all arms
of
government. Thus in
International Trade Administration
Commission v SCAW South Africa (Pty) Ltd
79
this Court said:
“
In
our constitutional democracy all public power is subject to
constitutional control. Each arm of the state must act within the

boundaries set. However, in the end, courts must determine whether
unauthorised trespassing by one arm of the state into the
terrain of
another has occurred. In that narrow sense, the courts are the
ultimate guardians of the Constitution. They do not
only have the
right to intervene in order to prevent the violation of the
Constitution, they also have the duty to do so.
It is in the performance of
this role that courts are more likely to confront the question of
whether to venture into the domain
of other branches of government
and the extent of such intervention. It is a necessary component of
the doctrine of separation
of powers that courts have a
constitutional obligation to ensure that the exercise of power by
other branches of government occurs
within constitutional bounds.
But even in these circumstances, courts must observe the limits of
their own power.”
80
(Footnotes omitted.)
When
it comes to matters falling within the heartland of Parliament, our
Constitution contemplates a restrained approach to
intervention in
those matters by the Courts. Such intervention is permissible if it
is undertaken to uphold the Constitution
because our courts are the
ultimate guardians of the Constitution. But where a competent
authority has already taken steps
to correct conduct inconsistent
with the Constitution, it may not be necessary for the guardians to
take action, particularly
where action to be taken is limited to
declaring a legal position already accepted by all parties
concerned. The position might
have been different if, assuming that
there is an inconsistency, the defect were to be cured by the Court
itself rather than
referring it back to the Assembly to continue
with the process which was already at an advanced stage. The order
proposed by
the main judgment does not give the applicant immediate
and effective relief. The declaration will be suspended for six
months
to enable the Assembly to complete the process of amending
its Rules.
The
Speaker’s argument based on the principle of separation of
powers must be assessed in this context. He argued that
granting
direct access in the present circumstances would offend the
doctrine of separation of powers. The main judgment dismisses
this
argument on the basis that the declaration of invalidity will not
trench upon the separation of powers because the Court
will not
formulate rules for the Assembly. Instead, it will leave the matter
to the Assembly to remedy the constitutional defect.
81
But this raises the anterior question: whether there is a genuine
constitutional defect.
Are
the Assembly’s Rules unconstitutional?
In
dealing with this question, we need to go back to the pleaded claim
and determine its content and scope. The applicant sought
direct
access in order to ask—
“
for a
declaration that the Rules of the National Assembly are inconsistent
with the Constitution and invalid to the extent that
they do not
properly vindicate my rights and those of other members of the
National Assembly to have
a
Motion of no Confidence accorded appropriate priority over other
parliamentary business, and, accordingly, scheduled for debate
and
vote as a matter of urgency
,
and in any event not later than 7 December 2012.” (Emphasis
added.)
This
pleading does not identify the Rules that are inconsistent with the
Constitution. Nor does it state which provision of
the Constitution
is breached by the unidentified Rules. This essential information
does not appear anywhere in the affidavit
deposed to by the
applicant and filed in support of the direct access application.
One remains in the dark as to which Rules
are inconsistent with the
Constitution and against which provisions of the Constitution the
impugned Rules may be tested for
constitutional invalidity. The
task of constitutional adjudication in these circumstances becomes
difficult to carry out. But
fortunately the solution is a simple
one. The defect in the applicant’s papers is fatal to the
claim and therefore it
fails at the starting line. As was observed
in
Shaik v Minister of Justice and Constitutional Development
and Others
,
82
to require accuracy in the identification of challenged provisions
“constitutes sound discipline in constitutional litigation”.
83
Specificity
and accuracy are the hallmarks of pleadings in constitutional
litigation. It cannot be left to a court, as is the
position here,
to choose which of the provisions of the attacked legislation is
targeted. The pleading that contains the challenge
must itself
identify accurately the impugned provisions and the sections of the
Constitution it is claimed they are inconsistent
with. That has not
happened here.
As a
result of this serious defect in the applicant’s papers, the
main judgment has been unable to identify specific Rules
which are
inconsistent with the Constitution. Its finding in this regard is
in general terms and so is the order granted. But
before dealing
with the difficulty I have with the order, I must record that at
the hearing counsel for the applicant was asked
on a number of
occasions to identify the Rules which the applicant contends were
inconsistent with the Constitution. He was
unable to do so. He
could not locate the lacuna complained of in the Rules simply
because it does not arise from the Rules.
The
order in the main judgment declares, without identifying a
particular Rule, that the Rules are inconsistent with section

102(2) of the Constitution to the extent that they do not “provide
for a political party represented in or a member of
the National
Assembly, to enforce the right to have a motion of no confidence in
the President scheduled for a debate and voted
for in the National
Assembly within a reasonable time, or at all.” The first
difficulty I have is that the order is too
generic and covers the
whole chapter 12 of Rules. The second is that it assumes that
section 102(2) confers rights on political
parties. As stated
earlier, the Rules allow members to table section 102 motions in
the Assembly. Section 102 does not require
that provision be made
for political parties to table motions.
The
section does not require that motions of no confidence in the
President be accorded priority over other business of the
Assembly.
Nor does it provide that such motions be scheduled and debated as a
matter of urgency. It bears repeating that the
Rules cater for the
consideration of urgent motions. Ordinarily, a motion that has been
put on the Order Paper may be moved
at any time by its author,
except that it cannot be moved on the day notice is given unless
all members present agree.
The
foregoing analysis demonstrates that if direct access were to be
given, there are no prospects that the applicant will succeed
in
the claim for having the Rules declared invalid for being
inconsistent with the Constitution. Prospects of success is an

important factor in determining whether direct access should be
granted. Affirming this in
Fleecytex
the Court stated:
“
Whilst
the prospects of success are clearly relevant to applications for
direct access to this Court, there are other considerations
which
are at least of equal importance. This Court is the highest court on
all constitutional matters. If, as a matter of course,

constitutional matters could be brought directly to it, we could be
called upon to deal with disputed facts on which evidence
might be
necessary, to decide constitutional issues which are not decisive of
the litigation and which might prove to be purely
academic, and to
hear cases without the benefit of the views of other Courts having
constitutional jurisdiction. These factors
have been referred to in
decisions given by this Court on applications for direct access
under the interim Constitution, and
are clearly relevant to the
granting of direct access under the 1996 Constitution.”
84
(Footnotes
omitted.)
Another
consideration which indicates the lack of prospects is the fact
that the bedrock of the present constitutional attack
is the
absence of a deadlock-resolving mechanism. The complaint is that
once the Programme Committee fails to reach a consensus,
a deadlock
arises, for which the Rules do not provide a solution. It was
argued that the omission was inconsistent with section
102(2) of
the Constitution because a motion may never be scheduled for debate
in the Assembly if there is a deadlock.
The
flaw in this argument lies in its own foundation. The so-called
deadlock arose because, as stated by the Speaker, the Programme

Committee adopted and followed a practice of taking decisions by
consensus which was different from what the Rules provide.
It
decided to follow this practice in the decision-making process even
though section 102(2) requires that the motion be passed
by “a
vote supported by a majority”. The practice followed was not
only inconsistent with Rule 129 but was also
not in line with the
constitutional provision on which the claim for invalidity is
based.
It
was irregular for the Programme Committee to follow a practice
which is inconsistent with the Constitution and the Rules.
In terms
of section 57(1) of the Constitution, the control and determination
of internal arrangements and procedures of the
Assembly, vests in
the Assembly and not in its committees. A committee of the Assembly
cannot follow a procedure that frustrates
the Assembly’s
processes or its business. Just as no functionary may perform a
power not conferred competently, a committee
may not follow a
practice or procedure not authorised by the Rules unless
specifically empowered by the Assembly.
In
Speaker of the National Assembly v
De Lille and Another
85
Mahomed CJ stated the principle thus:
“
This
enquiry must crucially rest on the Constitution of the Republic of
South Africa. . . .
It
is Supreme ─ not Parliament. It is the ultimate source of all
lawful authority in the country. No Parliament, however
bona
fide
or eminent its membership, no President, however formidable be his
reputation or scholarship, and no official, however efficient
or
well-meaning, can make any law or perform any act which is not
sanctioned by the Constitution.”
86
Central
to the applicant’s contention that the Rules are inconsistent
with the Constitution is a simple proposition that
they fail to
provide for a deadlock-breaking mechanism. The error in the edifice
which the applicant sought to construct is
in its foundation. The
premise from which she proceeds is unsound. Section 102(2) of the
Constitution does not require the
Assembly specifically to make
Rules regulating the passing of a motion of no confidence in the
President. It merely confers
the power to pass such motion on the
Assembly. The process to be followed by the Assembly in exercising
that power is left
to the Assembly’s discretion. This is in
line with the general power in section 57(1). Exercising this power
the Assembly
made Rules regulating the scheduling of motions,
including motions of no confidence in the President. As stated
earlier, these
Rules prescribe the process followed when motions
are introduced in the Assembly.
Rule
98 requires notice of a motion to be given by a member of the
Assembly who wishes to introduce a motion. The notice may
be given
in two ways. The author of the motion may read it aloud in the
Assembly and deliver a signed copy of the motion at
the Table or
deliver a signed copy of the motion to the Secretary on any working
day of Parliament. Once so delivered the motion
is placed on the
Order Paper. In other words the motion is placed on the agenda of
items to be considered by the Assembly.
Having been placed on the
Order Paper, the motion may be moved by its author, failing which
it remains on the Order Paper until
it lapses on the last day of
the Assembly’s sitting in a year.
87
The
applicant followed the procedure prescribed in Rule 98 when she
tabled the motion that forms the subject matter of these

proceedings. The motion was placed on the Order Paper for 13
November 2012 and on that day it was read for consideration in
the
Assembly. But contrary to the Rules regulating motions, the
Assembly instead of considering the motion, referred it to
the
Programme Committee so that it could be scheduled for debate. There
is no explanation for the course followed here. It
is difficult to
fathom why an item that was already placed on the agenda for
consideration by the Assembly was referred to
a committee for the
purpose of placing it on the Assembly’s agenda for debate.
This illustrates confusion and the fact
that the Rules were
misconstrued.
But
the confusion did not end there. Instead of referring the motion to
the Programme Committee, it was first forwarded to the
Chief Whips’
Forum. The need for this course which was not in line with the
Assembly’s decision is not explained
by the Speaker. Nor is
there any explanation for the Programme Committee to follow a
practice that led to the so-called deadlock,
contrary to Rule 129
which provides a mechanism for breaking a deadlock.
As I
see it, the applicant’s challenge should have been directed
at the Assembly’s decision in terms of which the
motion was
referred to the Programme Committee. On the face of it, the
decision was not in accordance with the Rules. The attack
on the
Rules is misconceived. The complaint is that due to the deadlock in
the Programme Committee, the motion could not be
tabled for debate
and vote. But the facts demonstrate that the motion was tabled for
debate in terms of Rule 98 and in terms
of that Rule the motion
remained on the Order Paper until it lapsed on the last day of the
Assembly’s sitting in November
2012. The referral of the
motion to the Programme Committee was unnecessary and contrary to
the Rules. It is therefore not
true to say that because of the
deadlock in the Programme Committee, the motion could not be tabled
for debate.
Moreover,
the constitutional defect raised by the applicant is embedded in
the so-called deadlock which occurred in the Programme
Committee.
But we know from the facts that this deadlock did not arise as a
result of the Committee applying the Rules. The
Committee
deadlocked because it followed a practice which was not in line
with the Rules. It was this practice that gave rise
to the deadlock
and not the Rules. Furthermore, it was the same practice which
failed to provide a deadlock-breaking mechanism.
The Rules provide
such mechanism by giving the chairperson a casting vote in the
event of equal votes. Therefore it is illogical
to translocate the
defect in the practice to the Rules and conclude that the defect is
in the Rules in circumstances where
if Rule 129 was applied, the
so-called deadlock could not have arisen.
When
the Assembly drew its Rules, it could not have foreseen that one of
its Committees would depart from those Rules and follow
a practice
which would lead to a deadlock. Consequently, the Assembly could
not have provided a mechanism to break a deadlock
that was not
anticipated and which did not flow from the application of the
Rules.
The
fact that the Speaker has conceded that the Rules contain a lacuna
cannot be a basis for the finding that the Rules are
inconsistent
with the Constitution. The question whether the Rules are not in
line with the Constitution is a legal question
which must be
determined by the Court itself. In view of the misinterpretation of
the Rules by the Speaker, illustrated earlier
in this judgment, the
concession by him carries no weight. In any event the lacuna
referred to must be seen in its proper context.
The concession was
to the effect that in present form the Rules do not specifically
cater for motions envisaged in section
102 of Constitution. This
does not mean that counsel for the Speaker was saying that section
102 demands exclusive Rules regulating
motions contemplated in it.
In their current form the Rules allow the tabling of all motions,
including those contemplated
in section 102.
Conclusion
In
concluding I must explain why I am unable to support the findings
at the heart of the conclusion reached in the main judgment.
First,
the main judgment endorses the interpretation given to section
102(2) of the Constitution by the High Court.
88
The main judgment finds that the section confers a constitutional
right on parties represented in the Assembly. I have already
stated
that this construction is incorrect. The section confers power and
not a right and that power is given to the Assembly.
It is an
institutional power exercised by the Assembly through its members.
In my respectful view, our Constitution does not
confer rights on
institutions of government. Consequently section 102 does not have
two different meanings. It does not confer
power on the Assembly
and at the same time give a right to political parties. The
interpretation that the section vests power
only is consistent with
the one preferred in
Ambrosini
.
89
Second,
the main judgment finds: “[t]he Rules have entrusted the
Programme Committee with the power to decide whether
a motion of no
confidence should be placed on the business of the Assembly.”
90
This is inferred from Rule 190 which sets out the power and
functions of the Committee. Rule 190 does not expressly say that

the Programme Committee has the power to decide whether a motion
should be placed on the Assembly’s agenda or not. Instead,
it
gives the Committee the power to prepare and adjust the Assembly’s
annual programme. This does not include the placing
of motions on
the agenda of the Assembly. All motions, including those envisaged
in section 102, are placed on the agenda in
terms of Rule 98.
This Rule requires that notice of a motion be given by either
reading it aloud and delivering the notice
at the Table in the
Assembly or delivering a signed copy to the Secretary who is
obliged to place the motion on the Order Paper
once notice has been
given. This is what happened in this case. The applicant’s
motion was placed on the Order Paper
after she gave notice by
reading it aloud in the Assembly.
Third,
the main judgment holds that the reading of the Rules as a whole
reveals a lacuna in the Rules regulating the decision-making
and
deadlock-breaking mechanism of the Programme Committee.
91
I have demonstrated that no lacuna exists in the Rules and that the
tabling of motions in the Assembly had nothing to do with
the
Programme Committee. The decision to refer the present motion to
that Committee was wrong. I have also shown that the so-called

deadlock in that Committee came about as a result of following a
practice and that it did not arise from the application of
the
Rules. If Rule 129 was applied the so-called deadlock would have
been broken.
[159]
For all these reasons I would have dismissed the applications and
ordered the applicant to pay costs of the hearing.
For
the Applicant: Advocate A Katz SC and Advocate G Quixley instructed
by Minde Shapiro & Smith Inc.
For
the First Respondent:
Advocate
JC Heunis SC and Advocate L Smit i
nstructed
by the State Attorney.
For
the Second Respondent:
Advocate
M Khoza SC and Advocate T Masuku and Advocate G Ngcangisa
instructed
by Xulu Livesage Inc Attorneys.
1
Who
is so recognised in terms of section 57(2)(d) of the Constitution.
2
The
Congress of the People, Inkatha Freedom Party, African Christian
Democratic Party, Azanian People’s Organisation, Freedom
Front
Plus, United Democratic Christian Party and United Democratic
Movement.
3
Duly
elected in terms of section 52(1) of the Constitution and Rule 9 of
the National Assembly Rules 7
th
Edition (Rules).
4
Section
167(4) of the Constitution provides:
“
Only the Constitutional Court
may—
(a) decide disputes
between organs of state in the national or provincial sphere
concerning the constitutional status, powers
or functions of any of
those organs of state;
(b) decide on the
constitutionality of any parliamentary or provincial Bill, but may
do so only in the circumstances anticipated
in section 79 or 121;
(c) decide
applications envisaged in section 80 or 122;
(d) decide on the
constitutionality of any amendment to the Constitution;
(e) decide that
Parliament or the President has failed to fulfil a constitutional
obligation; or
(f) certify a
provincial constitution in terms of section 144.”
5
Mazibuko
NO v Sisulu and Others NNO
[2012]
ZAWCHC 189
;
2013 (4) SA 243
(WCC)
(High
Court judgment).
6
Rule
98(1)(a) of the Rules provides:
“
When giving notice of a
motion a member shall read it aloud and deliver at the Table a
signed copy of the notice”.
7
Rule
221.
8
Id.
9
Rule
187.
10
Rules
188-9.
11
Rule
190(a) to (e).
12
High
Court judgment above n 5.
13
Id
at 255.
14
Id
at 258.
15
Id
at 256.
16
Id
at 259-61.
17
Women’s
Legal Trust v The President of the Republic of South Africa and
Others
[2009] ZACC 20
;
2009 (6) SA 94
(CC) at paras 27-8 and
Mkontwana v Nelson Mandela Metropolitan Municipality
[2004]
ZACC 9
;
2005 (1) SA 530
(CC);
2005 (2) BCLR 150
(CC) at para 11.
18
Currie
and de Waal
The New Constitutional and Administrative Law
vol
1 (Juta Law, Lansdowne 2001) at 95 and 107. See also
Ex Parte of
the Constitutional Assembly: In re Certification of the Constitution
of the Republic of South Africa, 1996
[1996] ZACC 26
;
1996 (4)
SA 744
(CC);
1996 (10) BCLR 1253
(CC) at para 112.
19
High
Court judgment note 5 above at 258.
20
Rules
187-190 of the Rules of the National Assembly state:
“
187 There is a Programme
Committee.
188 (1) The Programme Committee consists of—
the Speaker;
the Deputy Speaker;
the Leader of Government Business;
the House Chairpersons;
the Chief Whip;
the Deputy Chief Whip of the majority party in the
Assembly;
the whip of the majority party responsible for
programming;
another two whips of the majority party designated by
that party;
one whip and two additional representatives of the
largest minority party in the Assembly designated by that party;
one whip and one additional representative of the
second largest minority party in the Assembly designated by that
party; and
one whip of each of the other minority parties in the
Assembly designated by the party concerned.
(2) A whip referred to in Subrule (1)(f) to (l) who is
unable to attend a meeting of the Committee may designate another
whip
to attend the meeting.
(3) Rule 125 does not apply to this Committee.
189 (1) The Speaker is the chairperson of the Programme
Committee.
(2) If the Speaker is not available the Deputy Speaker
presides at a meeting of the Committee.
190 The Programme Committee—
must prepare and, if necessary, from time to time
adjust the annual programme of the Assembly, subject to any
relevant decisions
of the Joint Programme Committee;
must monitor and oversee the implementation of
Parliament's annual programme in the Assembly, including the
legislative programme;
must implement the Rules regarding the scheduling or
programming of the business of the Assembly, and the functioning of
Assembly
committees and subcommittees;
may make recommendations to the Joint Programme
Committee on any matter falling within the functions and powers of
that Committee;
and
may take decisions and issue directives and guidelines
to prioritise or postpone any business of the Assembly, but when the
Committee
prioritises or postpones any government business in the
Assembly it must act with the concurrence of the Leader of
Government
Business.”
21
For
comparative foreign approaches see Blackburn and Kennon (eds)
Griffith & Ryle on Parliament: Functions, Practice and
Procedures
2 ed (Sweet & Maxwell, London 2003) (Blackburn
and Kennon) and Jack (ed)
Erskine May
Parliamentary
Practice
(LexisNexis, London 2011) (
Erskine May
) on
committees in the British Parliament; National Democratic Institute
for International Affairs
Committees in Legislatures: A Division
of Labor
Paper 2 in the Legislative Research Series,
http://www.ndi.org/files/030_ww_committees_0.pdf, accessed on 19 May
2013, where
parliamentary committees of various jurisdictions are
considered.
22
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.”
23
Oriani-Ambrosini,
v Sisulu, Speaker of the National Assembly
[2012] ZACC 27
;
2012
(6) SA 588
(CC);
2013 (1) BCLR 14
(CC) at paras 60-5 (
Ambrosini
)
and
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 118-29 (
Doctors for Life
).
24
Van
Vuren v Minister of Correctional Services and Others
[2010] ZACC
17
;
2010 (12) BCLR 1233
(CC) at paras 38-45;
Transfer Rights
Action Campaign and Others v MEC for Local Government and Housing
Gauteng and Others
[2004] ZACC 23
at paras 9-16;
Satchwell v
President of the Republic of South Africa and Another
[2003]
ZACC 2
;
2003 (4) SA 266
(CC);
2004 (1) BCLR 1
(CC) at paras 6-7;
Bruce and Another v Fleecytex Johannesburg CC and Others
[1998] ZACC 3
;
1998 (2) SA 1143
(CC);
1998 (4) BCLR 415
(CC) at
paras 4-9 (
Bruce
).
25
Bruce
above n 24 at para 4.
26
Id
at para 19.
27
Women’s
Legal Trust
above n 17 at para 28.
28
Section
89(1) of the Constitution.
29
Id
at section 102(2).
30
Id
at section 86(1) and (2) and Schedule 3 Part A, Item 6.
31
Section
1(d) of the Constitution provides:
“
The Republic of South Africa
is one, sovereign, democratic state founded on . . . [u]niversal
adult suffrage, a national common
voters roll, regular elections and
a multi-party system of democratic governance, to ensure
accountability, responsiveness and
openness.”
Section
57(1)(b) of the Constitution provides:
“
The National Assembly may
make rules and orders concerning its business, with due regard to
representative and participatory democracy,
accountability,
transparency and public involvement.”
32
Ambrosini
above n 23 and
Democratic Alliance and Another v Masondo and
Another
[2002] ZACC 28
;
2003 (2) SA 413
(CC);
2003 (2) BCLR 128
(CC) at para 42.
33
High
Court judgment above n 5 at 250.
34
Wright
(ed)
House of Representatives Practice
6 ed, Department of
the House of Representatives, Canberra 2012,
http://www.aph.gov.au/~/media/05%20About%20Parliament/53%20HoR/532%20PPP/Practice6/PDF/Prelims/6Prelims.ashx,

at 321. See also Kelly & Powell
Confidence Motions
,
House of Commons Library, Standard Note SN/PC/2873,
http://www.parliament.uk/documents/commons/lib/research/briefings/snpc-02873.pdf,

(Kelly & Powell) who state as follows at para 1:
“
Votes of confidence or
no-confidence . . . are perhaps the most important Parliamentary
procedural devices, as in the ‘Westminster
model’ the
fate of a Government is ultimately dependent on the support of a
majority of MPs.”
The
authors also quote Turpin
British Government and the Constitution
5 ed (Cambridge University Press, Cambridge 2007) at 487, who
writes:
“
[T]he requirement that the
government must retain the confidence of the House of Commons is
still a fundamental principle of the
Constitution. In the last
resort it is sustained by the government’s dependence on the
House of Commons for ‘supply’
(finance) and the passing
of legislation.”
See
also National Democratic Institute for International Affairs
Daily
proceedings of the Canadian House of Congress
,
http://www.ndi.org/files/980_gov_legcapacity_0.pdf; Delhi Assembly
Commentary on Rule 251 of the Rules of Procedure of the Delhi

Assembly, www.delhiassembly.nic.in for the full page and
http://delhiassembly.nic.in/NoConfidenceMontion.htm for the
commentary;
Blackburn and Kennon above n 21 at 484;
Erskine May
above note 21 at 329. Department of the House of Representatives
Standing and Sessional Orders
(March 2006),
http://publicofficialsfinancialdisclosure.worldbank.org/sites/fdl/files/assets/law-library-files/Australia_House_of_Representatives_Standing_Orders_as%20of%20March%202006_EN.pdf,

provides in Standing Order 48:
“
A motion on notice or an
amendment of a motion which expresses censure of or no confidence in
the Government shall have priority
of all other business until it is
disposed of by the House, if it is accepted by a Minister as a
motion or amendment of censure
or no confidence.”
35
Kelly
& Powell
Confidence Motions
34 at para 2.
36
Rule
190(a) to (e).
37
High
Court judgment above n 5 at 261.
38
Ambrosini
above n 23 at paras 66-7.
39
Standing
Order 48 above n 34.
40
French
National Assembly, Article 153(1)
Rules of Procedure of the
National Assembly,
http://www.assemblee-nationale.fr/connaissance/reglement.asp#P1956_275560,
provides:
“
The filing of motions of
censure is found by delivery to the President of the Assembly of a
document entitled the “Motion
of censure” followed by a
list of signatures of at least tenth members of the Assembly. The
tenth is calculated on
the number of seats actually filled with, if
fraction, rounding the next whole number.”
Article
154(1) states:
“
The Conference of Presidents
shall fix the date for discussion of motions of censure, to be held
no later than the third day following
the expiry of the
constitutional meeting within forty-eight hours subsequent to the
filing.”
41
Section
203 of the Constitution provides:
“
State of national defence—
(1) The President as head of the national executive may
declare a state of national defence, and must inform Parliament
promptly
and in appropriate detail of—
(a) the reasons for the declaration;
(b) any place where the defence force is being
employed; and the number of people involved.
(2) If Parliament is not sitting when a state of
national defence is declared, the President must summon Parliament
to an extraordinary
sitting within seven days of the declaration.
(3) A declaration of a state of national defence lapses
unless it is approved by Parliament within seven days of the
declaration.”
42
Section
57(1) of the Constitution above n 22.
43
High
Court judgment above n 5 at 259.
44
The
first report was submitted by the Speaker on 14 March 2013 and the
second report was submitted by the Deputy Speaker on 22
March 2013.
45
Section
172(1)(a) of the Constitution.
46
Section
172(1)(b) of the Constitution.
47
Women’s
Legal Trust
above n 17 at paras 14-6 and 23;
President of the
Republic of South Africa and Others v South African Rugby Football
Union and Others
[1998] ZACC 21
;
1999 (2) SA 14
(CC); 1999 (2)
BCLR (CC) 175 at para 25.
48
Section
20(1) of the Supreme Court Act 59 of 1959 and
Mayelane v
Ngwenyama and Another
[2013] ZACC 14
;
2013 (4) SA 415
(CC) at
para 22.
49
Mazibuko
NO v Sisulu and Others NNO
[2012] ZAWCHC 189
;
2013 (4) SA 243
(WCC) (
Mazibuko
).
50
Id
at 256E-H.
51
For
example Section 73(2) of the Constitution provides:
“
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.”
52
Rule
94 provides: “A member may propose a subject for discussion,
or a draft resolution for approval as a resolution of
this House.”
53
Rule
101 provides: “An urgent motion directly concerning the
privileges of this House shall take precedence of other motions
and
of orders of the day.”
54
Rule
316(1) provides: “All motions and all other business, other
than bills, on the Order Paper on the last sitting day
of an annual
session of the Assembly, lapse at the end of that day.”
55
Rule
218 in relevant part provides:
“
(1) The Chief Whips’
Forum consists of—
(a) the House Chairpersons;
(b) the Chief Whip;
(c) the Deputy Chief Whip of the majority party;
(d) the most senior whip of each of the other parties
represented in the Assembly; and
(e) a committee chairperson designated by the Committee
of Chairpersons.
(2) The Speaker and the Deputy Speaker may attend
meetings of the Forum or designate someone to attend on their
behalf.
(3) A whip referred to in paragraph (d) or (e) who is
unable to attend a meeting of the Forum may designate another whip
to attend
the meeting.”
56
Rule
129(2) provides:
“
The chairperson of a
committee, subject to the other provisions of these Rules and the
directions of the committee—
(a) presides at meetings of the committee;
(b) may act in any matter on behalf of and in the best
interest of the committee when it is not practical to arrange a
meeting
of the committee to discuss that matter, if that matter
concerns —
(i) a request by a person to give evidence or make oral
representations to the committee;
(ii) any other request to the committee; and
(iii) the initiation of any steps or decisions
necessary for the committee to perform its functions or exercise its
powers;
(c) performs the functions, tasks and duties and
exercise the powers that the committee, resolutions of the Assembly
and legislation
may assign to the chairperson;
(d) in the event of an equality of votes on any
question before the committee, must exercise a casting vote in
addition to the
chairperson’s vote as a member.”
57
Rule
188(3) provides: “Rule 125 does not apply to this Committee.”
58
Rule
2(2) provides: “A Rule framed by the Speaker shall remain in
force until a meeting of the Rules Committee has decided
thereon.”
59
The
directions issued were framed in these terms:
“
1. The application for leave
to appeal, the appeal if leave to appeal is granted and the
application for direct access are set
down for hearing at 10h00
Thursday 28 March 2013.
2. The Applicant shall, not later than ten days before
the hearing,—
(i) lodge one copy of a supplemental volume to the
record, consisting of all documents filed in this Court which do not
form part
of the record already lodged;
(ii) number these documents consecutively beginning
with the page immediately after the last page of the record already
lodged;
and
(iii) provide an updated index which includes the
supplementary volume(s).
3. The first respondent is required to file a report
with the Registrar of this Court by Thursday 14 March 2013 on the
progress
achieved in the process of ensuring that motions of no
confidence are appropriately provided for in the Rules of the
National
Assembly.
4. Written argument must be lodged on behalf of :
(i) the Applicant by Tuesday 19 March 2013; and
(ii) the Respondents by Friday 22 March 2013.
5. Further directions may be issued.”
60
The
draft reads:
“
(1) A member may propose a
motion of no confidence in the President or Cabinet in terms of
section 102 of the Constitution for
approval as a resolution of the
House, and must state the grounds for the motion.
(2) The Speaker must schedule the motion after
consultation with the Leader of Government Business, the Chief Whip
and the Majority
Party and the Chief Whips’ Forum.
(3) When it is scheduled, consideration of the motion
of no confidence by the House must take place within a reasonable
time,
but no later than 12 Parliamentary working.
(4) If a motion of no confidence cannot reasonably be
scheduled by the last sitting day of an annual session, it must be
scheduled
for consideration as soon as possible in the next annual
session as if notice had been given on the first sitting day of that
session.
(5) The debate on a motion of no confidence shall not
exceed the time allocate for it by the Speaker, after consultation
with
the Chief Whip of the Majority Party as Chairperson of the
Chief Whips’ Forum.
(6) If a motion of no confidence is proposed a second
time the Speaker may schedule the motion after—
(a) the consultation contemplated in subrule (2) above;
and
(b) having considered whether another motion of no
confidence brought on the same or materially similar grounds, was
rejected
during that annual session.
(7) If a motion of no confidence in terms of section
102 is approved by the house, the Speaker must inform the Leader of
Government
Business in writing forthwith.”
61
[2000]
ZACC 25
;
2001 (1) SA 912
(CC);
2001 (1) BCLR 36
(CC).
62
Id
at para 12.
63
Section
167(4) provides:
“
Only the Constitutional Court
may—
(a) decide disputes between organs of state in the
national or provincial sphere concerning the constitutional status,
powers
or functions of any of those organs of state;
(b) decide on the constitutionality of any
parliamentary or provincial Bill, but may do so only in the
circumstances anticipated
in section 79 or 121;
(c) decide applications envisaged in section 80 or 122;
(d) decide on the constitutionality of any amendment to
the Constitution;
(e) decide that Parliament or the President has failed
to fulfil a constitutional obligation; or
(f) certify a provincial constitution in terms of
section 144.”
64
Von
Abo v President of the Republic of South Africa
[2009] ZACC 15
;
2009 (5) SA 345
(CC);
2009 (10) BCLR 1052
(CC).
65
Id
at para 36. See also
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) (
Doctors for Life
).
66
Section
167(6) provides:
“
National legislation or the
rules of the Constitutional Court must allow a person, when it is in
the interests of justice and
with leave of the Constitutional Court—
(a) to bring a matter directly to the Constitutional
Court; or
(b) to appeal directly to the Constitutional Court from
any other court.”
67
Christian
Education South Africa v Minister of Education
[1998] ZACC 16
;
1999 (2) SA 83
(CC);
1998 (12) BCLR 1449
(CC) at para 9.
68
Transvaal
Agricultural Union v Minister of Land Affairs and Another
[1996]
ZACC 22
;
1997 (2) SA 621
(CC);
1996 (12) BCLR 1573
(CC) at para 16.
69
[1998]
ZACC 3
;
1998 (2) SA 1143
(CC);
1998 (4) BCLR 415
(CC) (
Fleecytex
).
70
Id
at para 9.
71
Id
at para 8.
72
[2009]
ZACC 4
;
2009 (3) SA 649
(CC);
2009 (6) BCLR 611
(CC).
73
Jenkins
v S.A. Boiler Makers, Iron & Steel Workers & Ship Builders
Society
1946 WLD 15
at 23.
74
Section
57(1) 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.”
75
Wiese
v Government Employees Pension Fund and Others
[2012] ZACC 5
;
2012 (6) BCLR 599
(CC).
76
[1996]
ZACC 23
;
1997 (3) SA 514
(CC);
1996 (12) BCLR 1599
(CC).
77
Id
at para 15.
78
Doctors
for Life
above n 65 at para 37
.
79
[2010]
ZACC 6
;
2012 (4) SA 618
(CC);
2010 (5) BCLR 457
(CC).
80
Id
at paras 92-3.
81
Main
judgment at [71].
82
[2003]
ZACC 24
;
2004 (3) SA 599
(CC);
2004 (4) BCLR 333
(CC).
83
Id
at para 25 and
Phillips and Others v National Director of Public
Prosecutions
[2005] ZACC 15
;
2006 (1) SA 505
(CC);
2006 (2) BCLR
274
(CC).
84
Fleecytex
above n 69 at para 7.
85
[1999]
ZASCA 50
;
1999 (4) SA 863
(SCA).
86
Id
at para 14.
87
Rule
316(1) above n 54.
88
Main
judgment at [44]-[45].
89
Oriani-Ambrosini,
MP v Sisulu, MP Speaker of the National Assembly
[2012] ZACC 27
;
2012 (6) SA 588
(CC);
2013 (1) BCLR 14
(CC) (
Ambrosini
).
90
Main
judgment at [48].
91
Id
at [61].