Tlouamma and Others v Mbethe, Speaker of the National Assembly of the Parliament of the Republic of South Africa and Another (A 3236/15) [2015] ZAWCHC 140; 2016 (1) SA 534 (WCC); [2016] 1 All SA 235 (WCC); 2016 (2) BCLR 242 (WCC) (7 October 2015)

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[2015] ZAWCHC 140
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Tlouamma and Others v Mbethe, Speaker of the National Assembly of the Parliament of the Republic of South Africa and Another (A 3236/15) [2015] ZAWCHC 140; 2016 (1) SA 534 (WCC); [2016] 1 All SA 235 (WCC); 2016 (2) BCLR 242 (WCC) (7 October 2015)

IN
THE HIGH COURT OF SOUTH AFRICA
WESTERN
CAPE DIVISION, CAPE TOWN
CASE:
A 3236/15
DATE:
07 OCTOBER 2015
In
the matter between:
ANDRIES
MOLAPI
TLOUAMMA
.....................................................................
FIRST
APPLICANT
AGANG
– SOUTH
AFRICA
............................................................................
SECOND
APPLICANT
MOSIUOA
GERARD PATRICK
LEKOTA
......................................................
THIRD
APPLICANT
CONGRESS
OF THE
PEOPLE
......................................................................
FOURTH
APPLICANT
BANTUBONKE
HARRINGTON
HOLOMISA
.................................................
FIFTH
APPLICANT
UNITED
DEMOCRATIC
MOVEMENT
............................................................
SIXTH
APPLICANT
And
BALEKA
MMAKOTA MBETE, SPEAKER OF THE
NATIONAL
ASSEMBLY OF THE PARLIAMENT
OF
THE REPUBLIC OF SOUTH
AFRICA
...................................................
FIRST
RESPONDENT
JACOB
GEDLEYIHLEKISA ZUMA, PRESIDENT
OF
THE REPUBLIC OF SOUTH
AFRICA
...............................................
SECOND
RESPONDENT
JUDGMENT
DELIVERED ON 7 OCTOBER 2015
GOLIATH,
J
:
Introduction
[1]
This is a three-pronged application brought by three minority
opposition parties, Agang, Cope and United Democratic Movement,

firstly, to have the First Respondent (“the Speaker”)
removed from Office. It is alleged by the applicants that the
Speaker
had acted contrary to the “
law,
norms, conventions and practices that require a legislative Speaker
to maintain scrupulous neutrality, and keep an impeccable
reputation
for fairness and neutrality
”
and is no longer fit and proper to hold the position of Speaker. In
the second place, the application also concerns the
rules and
procedures of the National Assembly (“NA”) relating to
the tabling of a vote of no confidence in the President
of South
Africa (“the President”) in terms of s 102(2) of the
Constitution of the Republic of South Africa, 1996. The
applicants
contend that notwithstanding the amendments made following the
decision of the Constitutional Court in
Mazibuko
NO v Sisulu and Others
[1]
,
the new National Assembly Rule (“NA Rule”) 102A does not
adequately address the defects identified by the Constitutional
Court
and that it is inconsistent with s 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. Thirdly, the
applicants seek declaratory
relief pertaining to the manner in which a vote of no confidence is
conducted, and the discretion of
the presiding officer to conduct
such vote by secret ballot.
[2]
On 4 November 2014 the First Applicant, Andries Molapi Tlouamma
(Agang), gave notice of a motion of no confidence in the President
in
the National Assembly. Agang requested the Speaker to allow for
voting by secret ballot. On 13 November 2014 the motion was
placed on
the National Assembly’s Order Paper. On 19 November 2014 Agang
was advised that the motion of no confidence could
not reasonably be
scheduled before the National Assembly went into recess on 27
November 2014 and same would be scheduled pursuant
to Rule 102A(7) at
the earliest opportunity after the President’s State of the
Nation Address (“SONA”). The motion
of no confidence was
eventually scheduled for debate on 3 March 2015. On 22 December 2014
applicants launched an urgent application
to the Constitutional Court
for direct access. On 18 February 2015 the Constitutional Court
dismissed the application for direct
access on the basis that direct
access was not in the interests of justice.  On 23 February 2015
the applicants launched this
application seeking to interdict the
Speaker from causing the debate and voting in respect of the vote of
no confidence in second
respondent to take place on 3 March 2015
pending finalization of this matter. The application was dismissed by
Binns-Ward J on
27 February 2015.  On 3 March 2015 Agang
addressed the House and requested that the Speaker recuse herself as
the presiding
officer and that the voting on the motion of no
confidence take place by secret ballot. The Speaker refused to accede
to the request.
First applicant thereupon withdrew the motion.
The
Parties
[3]
The First, Third and Fifth Applicants are members of the National
Assembly and leaders of minority political parties Agang,
Congress of
the People and the United Democratic Movement (Second, Fourth and
Sixth Applicants) respectively.
[4]
The First Respondent is the Chairperson of the African National
Congress and the Speaker of the National Assembly. The Second

Respondent is the President of the Republic of South Africa who is
cited in his official capacity and by virtue of his interest
in the
outcome of the application. No relief is sought against the
President.
The
Relief sought
[5]
The relief sought by the Applicants is couched as follows:
“
4.1
An order declaring that National Assembly Rule 102A does not
adequately correct the defects identified
by the Constitutional Court
in
Mazibuko NO v Sisulu and Another
2013(6) SA 249 (CC) (‘
Mazibuko
’),
in 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 Second Respondent
(‘
the President
’)
scheduled for a debate and voted upon in the National Assembly within
a reasonable time or at all.
4.2
An order directing the National Assembly to amend Rule 102A of the
National Assembly Rules
to correct the defect adequately and to that
end to submit a draft amendment to this Court for certification of
adequacy within
a prescribed timeframe.
4.3
An order declaring that the failure of the First Respondent (‘
the
Speaker
’) to ensure that the
First Applicant’s (
Mr Tlouamma’s
)
motion of no confidence in the President was scheduled, debated and
voted on before the National Assembly went into recess on
28 November
2014, was inconsistent with section 102(2) of the Constitution and/or
National Assembly Rule 102A.
4.4
An order directing the Speaker to ensure that a motion of no
confidence to be given by Mr
Tlouamma following the adjudication of
this matter is scheduled, debated and voted on within a specified
period, as determined
by this Court.
4.5
An order declaring that the Speaker is not a fit and proper person to
hold office as Speaker.
4.6
In the alternative to the order described in the preceding
subparagraph, an order declaring
that the Speaker cannot continue to
hold the position of Chairperson of the National Executive Council
(‘NEC’) of the
African National Congress (‘ANC’)
as well as that of Speaker since it leads to a perception of bias in
favour of the
ANC and against other political parties represented in
the National Assembly.
4.7
An order interdicting the Speaker from presiding over the debate of
and vote on Mr Tlouamma’s
motion of no confidence and directing
that the Deputy Speaker or any of the other presiding officers in the
National Assembly preside
over that debate.
4.8
An order directing the Presiding Officer who presides over the debate
to ensure that the
vote is taken by secret ballot.
4.9
In the alternative to the order described in the preceding
subparagraph, an order:
4.9.1
Declaring that the Speaker (and other
Presiding Officers) has the authority to rule that a vote on a motion
of no confidence in
the President shall take place by way of secret
ballot;
4.9.2
Ordering that the presiding officer allow
an opportunity for debate as to

whether or not he or she should rule that the debate on the motion of
no confidence in the President take place by way of secret
ballot;
and
4.9.3
Ordering the Presiding Officer to take a
decision as to whether or not the aforesaid voting should take place
by way of a secret
ballot,      bearing in mind
that he or she has the authority to do so and with regard to the
reasons why it
is requested.”
[6]
The Speaker opposes all aspects of the relief sought in these
proceedings.   At the hearing of the matter the applicants

abandoned the certification relief in terms of prayer 4.2 of the
notice of motion. At the commencement of the hearing the respondents

raised two preliminary issues namely non-joinder and an application
to strike out. I deal with these issues at the end of the judgment

since it is more expedient to do so in light of the conclusion
reached.
Relief
as to National Assembly Rule 102A
[7]
The dispute relating to the above is a sequel to an order granted by
the Constitutional Court in
Mazibuko
where the following order
was made at paragraph [82]:
“
It
is declared that ch 12 of the rules of the National Assembly is
inconsistent with s102(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”.
[8]
In compliance with the Constitutional Court’s decision NA Rule
102A was adopted as follows:
“
102A.
Motions of no confidence in terms of section 102 of the
Constitution:
(1)
A member may propose that a motion
of no confidence in the Cabinet or the President in terms of section
102 be placed on the Order
Paper.
(2)
The Speaker must accord such motion of no
confidence due priority and before scheduling it must consult with
the Leader of Government
Business and the Chief Whip of the Majority
Party.
(3)
The motion must comply, to the
satisfaction of the Speaker, with the prescripts of any relevant law
or any relevant rules and orders
of the House and directives and
guidelines recommended by the Rules Committee and approved by the
House, before being placed
on the Order Paper, and must include the
grounds on which the proposed vote of no confidence is based.
(4)
The Speaker may request an amendment
of or in any other manner deal with a notice of no confidence motion
which contravenes the
law, rules and orders of the House or
directives and guidelines approved by the House.
(5)
After proper consultation and once
the Speaker is satisfied that the motion of no confidence complies
with the aforementioned prescribed
law, rules, orders, directives or
guidelines of the House, the Speaker must ensure that the motion of
no confidence is scheduled,
debated and voted on within a reasonable
period of time given the programme of the Assembly.
(6)
The debate on a motion of no confidence may not
exceed the time allocated for it by the Speaker, after aforesaid
consultation
process.
(7)
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.
(8)
Rules 95, 97 and 101 do not apply to motions of
no confidence in    terms of this Rule.”
Applicants’
Submissions
[9]
The applicants are aggrieved by the procedures followed by the
Speaker following Agang’s tabling of a motion of no confidence

in the President on 4 November 2014. Applicants contend that there is
no cogent reason why the Speaker could not have scheduled
a debate
and a vote within the eighteen day period between the initial request
and the end of the parliamentary session. Eight
days were set aside
for plenary sessions and various items of business scheduled during
this period lacked the requisite urgency
or importance so as to
justify priority over the motion of no confidence.
[10]
According to the applicants the motion could have been scheduled
after the House adjourned before
19h00 on 5, 6, 11 and 12 November
2014, or on 20 November 2014 when business of the House was suspended
between 14h42 to 20h47.
The submission was made that it is not
unusual for the NA to sit late at night when business of the House
demands extended hours
of sitting. The Speaker is empowered to
convene special sittings of the NA on Parliamentary working days
originally reserved for
other purposes. Reference was made to a
special sitting of the House on 27 November 2014 which was adjourned
at 22h02 that evening.
[11]
The applicants broadly submitted that NA Rule 102A does not comply
with the
Mazibuko
ruling in that the rule does not provide for such motion to ‘
be
accorded priority over other motions and business’
,
nor does it provide for ‘
prompt
and reasonable steps’
to be taken
by the National Assembly ‘
to
ensure that the motion is scheduled, debated and voted on without
undue delay’.
It is submitted
that the provision in subrule (2) that the Speaker has to accord such
motion of no confidence ‘
due
priority’
and the requirement in
subrule (5) that the Speaker has to ‘
ensure
that the motion of no confidence is scheduled, debated and voted on
within a reasonable period of time given the programme
of the
Assembly’
do not adequately
respond to the Constitutional Court’s directives that it has to
‘
be accorded priority over other
motions and business’
and that
the National Assembly has to ‘
take
prompt and reasonable steps to ensure that [it] is scheduled, debated
and voted on without undue delay’.
[12]
The applicants contend that the requirement in subrule (2) that the
Speaker has to accord such
motion ‘
due
priority’
without reference to
‘
other motions and business
’
is so vague as to be virtually meaningless, particularly in the
absence of any provision for a timeframe within which a
motion of no
confidence has to be debated and voted upon. The requirement in
subrule (5) that a Speaker has to ensure that the
motion of no
confidence is scheduled, debated and voted on ‘
within
a reasonable period of time given the programme of the Assembly’
is unacceptably vague and fails to provide criteria with reference to
which a determination has to be made regarding the importance
of a
motion of no confidence relative to other National Assembly business.
The rule also fails to provide criteria with reference
to which the
tabling of such motion can adequately be prioritized. In the absence
of clear guidelines in this regard s102A(2) and
(5) remain
inconsistent with the Constitutional Court’s directive that
such motion has to be accorded priority over other
motions and
business.
[13]
It is further contended that subrules (3), (4) and (5) are also
inconsistent with the
Mazibuko
ruling in as much as they provide too much scope for manipulation and
procrastination and are unnecessarily restrictive, more specifically

the requirement that the specific grounds on which the motion of no
confidence is based must be included in the motion, which is
not a
requirement for other motions. The rule, the submission continued,
also creates too much scope for the Speaker finding fault
with the
motion of no confidence and is unnecessarily onerous in terms of the
requirements laid down for such a motion and does
not contain
sufficient guidelines to inform the Speaker’s decision. In
addition the ‘
as soon as possible’
requirement in subrule (7) is similarly too vague and it should at
least be provided that if a motion of no confidence cannot reasonably

be scheduled by the last sitting of any session, not an annual
session, it has to be scheduled for consideration within a
pre-determined
timeframe in the next session, not the next annual
session.
[14]
It was further submitted that the fact that the Speaker, a member of
the majority party, has
to consult two other members of the National
Assembly, namely, the Leader of Government Business and the Chief
Whip, who are both
senior representatives of the majority party,
leaves the scheduling of motions of no confidence within the gift of
the majority
party. Consequently, the scheduling of a motion of no
confidence in terms of NA Rule 102A is contrary to the founding
constitutional
provision of a multi-party democratic government and
contrary to the core values of accountability, openness and
responsiveness.
The Rule is also contrary to the spirit of s 57(2)(b)
of the Constitution which provides that the rules and orders of the
National
Assembly must provide for the participation of minority
parties in the proceedings of the National Assembly and its
committees,
in a manner
consistent
with democracy, the urging went. The Applicants therefore contend
that the Speaker’s failure to ensure that the
motion of no
confidence was scheduled, debated and voted for on or before the
National Assembly went into recess was inconsistent
with NA Rule 102A
in that it was not afforded due priority and was not scheduled within
a reasonable time with regard to the programme
of the National
Assembly. Applicants also contend that the rule is deficient in that
it does not contain an express requirement
that a vote on a motion of
no confidence in the President must be taken by secret ballot.
The
Speaker’s Submissions
[15]
The Speaker submits that NA Rule 102A is compliant with the reasoning
and order of the Constitutional Court in
Mazibuko
regarding
the time within which a motion of no confidence in the President must
be scheduled for debate and voting in
the
National Assembly. The motion was received in early November 2014. At
that stage the Joint Programme Committee (“the JPC”)
had
agreed to a timetable of business scheduled for completion by the
last sitting in late November 2014. Eight plenary sessions
were
scheduled in the National Assembly during this period, which included
a large volume of important work. Given the importance
and time
required for a proper debate on Agang’s motion, the
rescheduling of some of the work would not have created sufficient

time for members to consider and prepare for a proper debate on the
motion. The Speaker describes the sequence of events as follows:
15.1
On 3 November 2014 Agang notified her in writing that it had
circulated its
motion and requested that voting on the motion be
conducted by secret ballot. She responded on 4 November 2014
requesting the party
to remedy certain defects in the motion. On 4
November 2014 at 10h21
Agang read out its
motion in the National Assembly and delivered a signed copy of its
draft resolution to the secretary of the National
Assembly. On 4
November 2014 at 10h21 the motion was sent to the parliamentary
translators. The translated versions were prepared
by 15h03 on the
same day.
15.2
On 5 November 2014 Parliament’s Procedural Officers prepared
written
advice regarding the procedural status of the motion and on 6
November 2014 that advice was checked by Parliament’s
Procedural
Advisors. On 7 November 2014 the advice was submitted by
the secretary to the National Assembly for approval and subsequently
transmitted
the Speaker.
15.3
On 11 and 12 November 2014 the Speaker consulted the Leader of
Government Business
and the Chief Whip of the Majority Party about
the scheduling of the motion. On 12 November 2014 the secretary of
the National
Assembly was instructed to publish the motion on the
next Order Paper of 13 November 2014 which was duly attended to.
15.4
On 14 November 2014 Agang requested in writing that the voting on the
motion
be conducted by way of secret ballot. On 17 November 2014 the
party again communicated in writing and sought an assurance that the

Speaker would not preside over the National Assembly debate of the
motion.
15.5
On 18 November 2014 the Speaker met with the leader of Government
Business
and the Chief Whip of the Majority Party to discuss the
scheduling of the motion as published in the Order Paper of 13
November
2014. It became clear that the motion could not reasonably
be scheduled before the last sitting day of 27 November 2014. The
secretary
of the National Assembly was informed accordingly. The
secretary advised Agang of the decision, which was accepted without
any
reservation. On 20 November 2014 Agang notified the Speaker in
writing that it was inclined to accede to her request to delay the

debate
on
two conditions, namely; that she not preside over the proceedings,
and that voting be conducted by secret ballot. This request
was
followed by another letter in which Agang demanded a response. On 24
November 2014 an urgent memorandum was prepared by the
National
Assembly’s Table Division regarding Agang’s requests. It
was recommended that the Speaker advise the party
in writing, which
was duly done on 25 November 2014, that the motion could not
reasonably be scheduled and that in terms of NA
Rule 102A(7) it would
be scheduled for consideration at the earliest opportunity after the
State of the Nation address. Furthermore,
that the request for a
secret ballot was rejected, specifying the reasons therefore. On 26
November 2014 the National Assembly’s
Programme Committee met
and finalized the programme for the last plenary session of the
National Assembly on 27 November 2014.
Agang was entitled to attend
this meeting and could have raised any objections to the proposed
scheduling of the motion pursuant
to NA Rule 102A (7). However, first
respondent failed to attend the meeting, the Speaker stated.
[16]
The Speaker contends that NA Rule 102A contemplates that a motion of
no confidence in the President may be scheduled for debate
and voting
if it has been placed on the Order Paper and certain procedural steps
had been finalized. The motion could only reasonably
be scheduled at
least ten working days after the tabling of the motion. Agang’s
motion was not ripe for scheduling until
it had been published on the
order paper which occurred on 13 November 2014. Having complied with
all procedural aspects relating
to the notice of motion it could not
reasonably be scheduled due to the full programme of the National
Assembly and insufficient
time to prepare for debate. The Speaker
therefore decided to schedule the motion of no confidence early in
2015 after the President’s
State of the Nation address. Agang’s
suggestion, in the circumstances, that it could have been scheduled
earlier was incorrect.
On 19 and 20 November 2014 Agang accepted that
the motion could not be scheduled, but changed its position the
following day.  There
was clearly not sufficient time to prepare
for debate. With regard to the time period within which to schedule
the motion the Speaker
submits that the applicants are wrong in their
assertion that the rule has to specify a timeframe within which such
motion should
be debated since such assertion is not consistent with
Mazibuko
.
[17]
The Speaker further contends that applicants are incorrect in their
assertion that the requirement in NA Rule 102A (2) that
the Speaker
consult with the Leader of Government Business and the Chief Whip of
the Majority Party before scheduling a motion
of no confidence in the
President leaves the scheduling of a motion of no confidence within
the gift of the majority party and
is consequently at odds with the
Mazibuko
judgment. Both the Leader of Government Business and the Chief Whip
play an indispensable role in the scheduling of Parliamentary

Business, the attendance of Cabinet members thereat and specifically
in the prioritisation of government business. The requirement
of
consultation in NA Rule 102A is in recognition of the importance of
motions of no confidence and the serious consequences for
the
President, Cabinet and ruling party. There must be the requisite
quorums and to the extent necessary, Cabinet members must
be in
attendance. Furthermore, in giving “
due
priority
” to a motion of no
confidence the Parliamentary schedule needs to be adapted or an
extended sitting period may be required.
The Chief Whip assumes a key
role in this regard.  Furthermore, that there is no merit in the
applicants’ submission
in respect of subrules (3), (4) and (5)
regarding the requisite requirements for the motion.
[18]
The Speaker maintains that she had acted lawfully and
constitutionally in scheduling the motion as soon as practically
possible
in terms of NA Rule 102A(7) and that her scheduling decision
was therefore rational. Furthermore, she submits that any
intervention
by the Court regarding her decision on the scheduling
and prioritisation of parliamentary business would infringe upon the
principle
of separation of powers.
[19]
In reply Agang contends that the Order Paper should have been
published on 6 November 2014 and the consultation process had
to be
embarked upon concurrently with the Speaker’s duty under NA
Rule 102A (3) to ensure compliance with relevant formal
and
substantive requirements and had to be attended to without delay. The
Speaker was reasonably capable of concluding proper consultation
with
the Chief Whip and Leader of Government Business after being duly
notified of the motion on 4 November 2014 and scheduling
the motion
of no confidence, and could have convened a further plenary session.
The fact that consultation takes place with the
Chief Whip of the
ruling party and the Leader of Government Business is inconsistent
with the letter and spirit of the
Mazibuko
decision. The Leader of Government business, insofar as he holds high
political office, will have to vacate his office in the event
of a
successful motion of no confidence in the President. Therefore he has
a real interest in frustrating or unduly deferring the
motion, or
even preventing it from being debated and voted upon. The
deficiencies in NA Rule 102A and how prone it is to abuse
were
manifested in the manner in which Agang’s motion of no
confidence was deferred to the following year.
[20]
Applicants contend that the Speaker failed to provide any explanation
why the “
committee oversight
” work scheduled for
25, 26 and 27 November 2014 was more important than the motion of no
confidence or could not be rescheduled.
The Speaker failed to
demonstrate that the scheduled business was more important than the
motion of no confidence, thus precluding
rescheduling in order to
accommodate
the
motion. The applicants argue that the Speaker offers vague statements
to the effect that the National Assembly programme was
“
very
full with business
”, declines to
deal with the importance of each motion, and speculates that the
rescheduling of work would not have created
sufficient time for a
debate and vote on the motion and states that the Joint Programme
Committee agreed to an updated timetable
as at 31 October 2014.
However, this does not constitute a rational basis for not scheduling
the motion by 28 November 2014. It
was incumbent upon the Speaker to
demonstrate that the specific scheduled items of business were more
important than the motion
of no confidence in the President. The
decision as to the scheduling of a motion of no confidence in the
President is entirely
that of “
loyal
ANC cadres
”, the accusation went;
and that this was inconsistent with the multi-party system of
democratic government in South Africa
to ensure accountability,
responsiveness and openness.   The Speaker, they said,
seeks to hide behind the doctrine of
separation of powers by alluding
to the Court second guessing her decision to schedule the motion.
Secret
Ballot Relief
The
Principal Submissions
[21]
The applicants stated that the President is elected by the National
Assembly under a secret ballot as ordained by the Constitution
and
should also, where he has lost the confidence of the majority of the
National Assembly, be removed by secret ballot. They referred
to
various other jurisdictions where this is done. According to them
there are cogent reasons why ANC members of the National Assembly

will be frustrated in acting in accordance with their oaths of office
and consciences since they genuinely fear expulsion from
the party if
they publicly support the motion of no confidence, which many ANC
members would be inclined to do. The right to make
and express
democratic political choices can only be meaningful if persons can
vote by way of secret ballot as expressly provided
for in s 19(3) (a)
of the Constitution
[2]
since
this ensures that they can exercise their choice without fear of
retribution. These provisions give effect to the Constitutional

imperatives and international human rights law and norms relating to
secrecy. It cannot conceivably be argued that they inhibit
openness
and transparency. By the same token a secret vote in respect of a
motion of no confidence in the President cannot be said
to compromise
openness and transparency. Furthermore NA Rules 77 to 93 do not make
provision for a secret ballot. Any request for
voting by secret
ballot involves an eventuality which the Rules do not provide for
and, that being the case, the Speaker would
have the discretion in
terms of NA Rule 2(1) to give a ruling and, if need be, frame a Rule.
[22]
The Speaker submits that there is no legal basis for the applicants’
declaratory order sought that the vote occurs by
way of secret
ballot. It is argued that neither the Constitution nor the NA Rules
77 to 93 which deal extensively with voting processes
provide for
voting by secret ballot.  It is therefore argued that NA Rule
2(1) is not applicable and that the Speaker has
no discretion to rule
how voting should be undertaken in respect of a vote of no confidence
in the President. Furthermore, any
such requirement would be
inconsistent with the requirements of transparency and openness in
the functioning of the National Assembly.
[3]
[23]
In reply the applicants stated that they do not rely on the
provisions of the Constitution or the Rules of the National Assembly

with regard to secret ballot voting but on the overall structure of
the system of democratic representation provided for in the

Constitution. The principles of the Constitution and the Rules of the
National Assembly must always be applied in such a manner
as to
render the mechanisms of accountability meaningful rather than
nugatory. If mechanisms for effectuating the accountability
of the
President are implemented in such a fashion that, by all accounts,
the outcome is a foregone conclusion, it runs contrary
to democratic
principles.
[24]
Applicants concede that a secret ballot is not necessarily always
mandatory, but the Speaker should on a case by case basis
or on
request be in a position to apply her mind and exercise a discretion
as to whether a particular motion must be decided upon
by secret
ballot. NA Rule 2(1) covers matters not dealt with in the Rules,
which would include whether or not voting in respect
of a particular
motion can be conducted by secret ballot.
[25]
The Speaker can and must give a ruling by virtue of the authority
vested in her by NA Rule 2(1). The Speaker’s implicit
denial
that she has any discretion in this regard manifests her
misapprehension of her powers. The presiding officer would be able
to
make a determination, after hearing the motivation for such a
request, in terms of NA Rule 2(1) precisely because a secret ballot

is not provided for in the Constitution or the Rules.  The same
applies for a request of recusal of the Speaker. Members should
be
allowed to present argument in support of or against such requests
and the Speaker must then proceed to make an informed decision.
The
Speaker’s conduct
Applicants’
submissions
[26]
The applicants aver that the Speaker has lost the confidence of all
opposition parties in the National Assembly due to perceived
bias and
partisanship towards the ruling party. It is alleged that the Speaker
is ill-equipped to comply with the demanding standards
associated
with the high office of Speaker, and had acted contrary to the laws,
norms, conventions and practices that require a
legislature Speaker
to maintain scrupulous neutrality, and keep an impeccable reputation
for fairness and neutrality. The applicants
contend that core aspects
of the Speaker’s functioning are regulated by the so-called
lex
parliamenti
which prescribes that the chairperson be completely impartial,
unbiased and non-partisan, both inside and outside the Council
Chamber. Applicants referred to the Westminster tradition where the
chief characteristics attaching to the Speaker in the House
of
Commons are authority and impartiality. With reference to
Erskine
May
[4]
the applicants contend that confidence in the impartiality of the
Speaker “
is
an indispensable condition for the successful working of procedure”
.
In the Westminster tradition the Speaker takes no part in debate and
plays no active part in party politics. Applicants also referred
to
the requirements of impartiality in other jurisdictions such as India
and Canada.
[27]
The Applicants referred to
Brummer
,
NO
v Mvimbi
and
Others
[5]
,
an unreported judgment in this Division where the following was
stated:
“
The
second is that core aspects of the Speaker’s functioning are
regulated by the common law which demands that the Speaker
be
completely impartial and non-partisan, both inside and outside the
Council Chamber.”
[28]
Reference was also made to the Supreme Court of Appeal’s
statement in
Gauteng
Provincial Legislature v Kilian and Others
[6]
where it was held that the Speaker “
is
required by the duties of his office to exercise, and display, the
impartiality of a Judge
”.
In paragraph 26 of the judgment Zulman JA stated:
“
Referring
to Redlich’s Procedure of the House of Commons, Holdsworth
comments that the position of the Speaker in relation
to the law ‘is
strikingly similar to the relation of a Judge to the common law and
to the rules of his Court’; ...
these orders ‘cover
almost the whole field of the regulation of its business’ ...
Kiplin then states that: ‘The
plain fact is that Mr Speaker’s
duties are too numerous to set out in detail ... but they depend so
much on tradition that
no better summary can be given that that
which May originally wrote’.”
[29]
Applicants therefore contend that these views expressed by the Courts
are still operational after the commencement of the new

constitutional dispensation. Reference was also made to a leading
text, authored by George Bergougnous, titled
Presiding
officers of National Parliamentary Assemblies
:
A
World Comparative Study
[7]
,
where he writes that ‘
the
office of the Speaker calls for the utmost impartiality and implies
that the holder of the office is capable of relinquishing
his
political affiliation to any party
’
and even if the Speaker is involved in politics, he ‘
never
appears as the sectarian and extreme representative of a party
”
regardless of the nature of the political system. However, the
Speaker admitted that she had projected herself as an ‘
unabashed
protagonist of the ruling party’
and has shown herself to be manifestly unfit to hold the position she
does.
[30]
Applicants argued that the common law lives on in the new
constitutional era and remains an important source of law as
confirmed
in
Pharmaceutical
Manufacturers Association of South Africa and Another: In Re Ex Parte
President of the Republic of South Africa and
Another
[8]
.
The so-called common law of Parliament remains a source of law. Given
the facts of this matter and the conventions which apply
to the
position of Speaker the present incumbent is clearly unfit to hold
her position.
[31]
It was contended that the Speaker had issued a series of patently
biased and unfair rulings within the National Assembly, she
lacks the
actual or perceived impartiality required of the Office of the
Speaker by actively participating in political matters,
attending
meetings of her political party and actively canvassing voters on
behalf of her party during election campaigns. The
Speaker failed to
place appropriate distance between herself and her political party
after assuming office by remaining in position
as Chairperson of the
NEC of the ruling party. Furthermore, the Speaker had made public
pronouncements unbecoming of the Office
of the Speaker, including
disparaging remarks about members of the National Assembly
representing minority parties. The incumbent
exercised her duties as
Speaker in a partisan manner, thereby advancing the interests and
political agenda of the majority party,
more particularly by
shielding the President and senior cabinet members from parliamentary
oversight. It is therefore alleged that
she violated the independence
of the legislature by failing to hold the executive to account.
[32]
Lastly on this aspect, it was submitted that the Speaker violated the
principle of separation of powers by frustrating the
legislature’s
constitutionally mandated function of providing checks and balances
to ensure executive accountability; allowing
the executive to unduly
interfere with public access to and involvement in the National
Assembly as enshrined in s 59 of the Constitution;
directing the
removal of opposition MP’s from the House at the hands of the
South African Police Services (SAPS), and failing
to prevent the
removal of others whose removal she had not ordered.
[33]
In substantiation of the aforementioned the applicants referred to
numerous events which transpired in the House; that on 21
August 2014
the Speaker shielded the President from answering questions in the
House, disallowed follow-up questions and ignored
points of order,
but permitted ANC members to address parliament. This resulted in
disciplinary proceedings against 20 Economic
Freedom Fighters (‘EFF”)
MP’s which culminated in a decision of the National Assembly to
suspend them without
pay for 14-30 days.
[34]
On 16 September 2014 during a sitting on a motion of no confidence in
the Speaker, the incumbent remained in the House and
sat next to
Deputy President Ramaphosa while observing the proceedings. She also
addressed supporters outside Parliament prior
to the debate. On 13
November 2014 during a debate on the
ad
hoc
committee report on Nkandla the
Speaker unilaterally decided to change the programme due to alleged
time constraints. Proceedings
descended into chaos when the Speaker
ignored objections and refused to acknowledge some MP’s and was
insolent towards MP’s
who expressed their views.
[35]
The Speaker also failed to restrain herself on 26 November 2014 and
pointed her finger at an EFF member indicating her displeasure
when
she was addressed by her first name. In January 2015 the Speaker
attended the ANC’s 103
rd
birthday celebration and on 14 February 2015 she addressed the ANC
North West Provincial Conference. In October 2014 and 14 February

2015 the Speaker made disparaging remarks of the EFF, and later
withdrew one of the remarks for which she apologized on 18 February

2015 in a media statement. Applicants also expressed their
dissatisfaction with the extra-parliamentary media statements made by

the Speaker criticizing opposition parties and supporting the ruling
party.
[36]
Reference was also made to two events at the President’s State
of the Nation Address (‘SONA’) on 12 February
2015. The
first incident relates to the forceful removal of all EFF MP’s
from the House by security officers. It is alleged
that the Speaker
was complicit in their forced removal and expressed delight at the
manner in which they were removed. The second
incident involved a
signal jamming device incident during SONA which prevented
journalists from reporting due to lack of cell phone
signals and
which consequently censored media broadcasting of the event. The
Speaker could not offer any satisfactory explanation
as to who called
for the jamming, who approved it and why the signal was jammed. The
Speaker allowed members of the National Assembly
to be forcibly
removed from the House and provided an inadequate explanation for
SONA events.
[37]
Despite the criticism of the Speaker, applicants made it clear that
they do not seek any relief in respect of specific rulings,

statements and conduct of the Speaker, but believe such conduct,
statements and rulings cumulatively demonstrate actual bias and

partisanship. It is argued that the Speaker is reluctant to act with
the necessary independence and impartiality in holding the
executive
to account. Furthermore, the conduct of the Speaker is inimical to
the requirements of the Office of the Speaker. There
is a
well-grounded perception of bias, and applicants call into question
her ability to apply the National Assembly Rules fairly
and
impartially, insofar as all opposition MP’s are concerned. The
applicants submit that the exercise of public power such
as that
conferred on the Speaker is only legitimate where lawful. The Courts
have an oversight responsibility in respect of the
actions of office
bearers and officials attached to other branches of government. The
doctrine of separation of powers is not a
bar to the judiciary
assessing, with reference to the relevant facts, whether or not the
conduct of the Speaker complained of violated
the legal rules which
dictate what that conduct may or may not entail, and to make
definitive judgments in that regard.
The
Speaker’s Response
[38]
The Speaker contends that her eligibility for Office is derived from
the Constitution itself. The South African political system
is
different from the Westminster tradition that requires that the
incumbent must be fit and proper to hold Office as Speaker.
[39]
The case of
Brummer
,
NO
v Mvimbi
and
Others
[9]
referred to by the applicants is correct in describing the Speaker as
being an “
impartial
moderator
”
under a duty “
to
apply standing orders fairly and equally at all times
”.
The Speaker maintains that the case of
Gauteng
Provincial Legislature v Kilian and Others
[10]
referred to by the applicants is correct to the extent that it
requires the Speaker to discharge her functions impartially. However,
Kilian
overstates the position when it says the Speaker must “
exercise
and display, the impartiality of a Judge”.
The
Office of Speaker is dissimilar to that of a Judge. The independence
of the judiciary is constitutionally mandated. The Speaker,
unlike a
Judge, is required by the Constitution to be and remain a member of
his or her political party represented in the National
Assembly. The
Speaker may also cast a deciding vote when needed. The same standard
of impartiality of a Judge cannot apply equally
to a Speaker, we were
sought to be persuaded.
[40]
It was submitted that any member who is dissatisfied with the conduct
of the Speaker may challenge a ruling by taking the matter
up with
the Speaker privately or to refer the principle of the ruling to the
Rules Committee for consideration. It is also possible
for specific
conduct of the Speaker to be taken on judicial review. The only
manner in which to challenge a perceived lack of impartiality
on the
part of the Speaker is authorized by the Constitution in terms of s
52(4) i.e. by tabling a motion of no confidence in the
Speaker for
resolution by the National Assembly. The corollary is that the
incumbency of the Speaker may not be challenged in the
Courts, except
by way of proceedings for judicial review, on a legally cognisable
basis, namely, an infringement of the implied
constitutional
requirements of legality or rationality of a decision by the National
Assembly.
[41]
The case for the Speaker was further that to be eligible for election
as a Speaker, a candidate must be a Member of the National
Assembly.
The Speaker in South Africa is not required to sever her or his
political ties and the position is thus not inherently
non-partisan.
The Speaker’s right to participate in political affairs of a
political party is guaranteed in s 19(1)(b) and
(c) of the
Constitution, which right vest in every citizen, including the
Speaker.
[42]
The following distinction was sought to be drawn on behalf of the
Speaker between her political office as National Chairperson
and as
presiding officer of the National Assembly.  The functions of
Chairperson of the NEC are distinct from those of the
Speaker. There
is no constitutional or legal impediment to the Speaker attending
meetings of the ANC, participating in activities
and programmes of
the ANC, campaigning during election campaigns and addressing
meetings of the ANC to advance its interests. The
applicants failed
to address the separate and distinct functions and duties required of
her as Chairperson of the NEC on the one
hand, and Speaker on the
other. The first respondent does not participate in ANC political
events in her capacity as Speaker. The
fact that the Speaker is not
distancing herself
from
the ANC outside Parliament does not constitute a basis on which to
render her not fit and proper to be Speaker.
[43]
The Speaker disputed allegations made against her with regards to her
conduct in the House on various occasions. According
to her on 21
August 2014 the EFF members engaged in disruptive conduct and
hampered the effective parliamentary business. The Rules
of the House
and her rulings were ignored and the Speaker eventually suspended the
proceedings, as she was entitled to do in terms
of NA Rule 56. The
Speaker confirmed that on the same day she exercised her power in
terms of NA Rule 113 (4) to limit the number
of supplementary
questions to the President which was a regular occurrence. There is
no merit in the averment that it was done
in an attempt to hamper
effective parliamentary oversight or to shield the President from
answering questions. There is no factual
basis on which to find that
the Speaker did not act impartially, fairly, equitably and without
bias.
[44]
The Speaker admits that she addressed a crowd outside Parliament on
16 September 2014 prior to its sitting. Groups of women
gathered
outside Parliament on their own accord to show support for her. She
believed it would have been ungracious of her not
to have
acknowledged their presence. There was nothing improper about her
conduct.
[45]
The Speaker also admits taking up a seat in the National Assembly
next to the Deputy President during the debate on 16 September
2014
on the motion of no-confidence in her. She had elected to remain in
the House since there is no specific requirement that
she absent
herself from the National Assembly Chamber during the debate. All
members of the National Assembly, including the Speaker,
are
allocated seats in the House. Her seat happens to be next to that of
the Deputy President.
[46]
On 13 November 2014 the Programme Committee scheduled 38 Committee
Reports and more than 200 motions which were not appropriate
for the
effective and
proper
running of the business of the House.  The Speaker sought to
make a ruling at the commencement of the proceedings to
limit the
time in which the motions were to be given, and proposed that some of
the Committee Reports be deferred to a later occasion.
There was
opposition to her ruling but it is an overstatement to say that the
proceedings descended into chaos. She concedes that
she had made
certain remarks but claims they were in jest and not intended to
insult. The Speaker also confirmed that an EFF member
was removed by
the House Chair in circumstances which warranted such intervention
due to her refusal to obey certain rulings.
[47]
The Speaker furthermore admits that on 26 November 2014 she responded
to an EFF member in a firm and authoritative manner.
The member
referred to her by her first name which was improper, disrespectful
and unparliamentary in the circumstances. There
is no basis to impugn
the Speaker for rebuking the member.
[48]
With regard to the two incidents at SONA on 12 February 2015 the
Speaker contends that she cannot be sanctioned for her handling
of
the difficult series of events. She disputes the allegations made
against her and insists that she was not aware of the imposition
of
the signal jammer. As soon as the issue was raised she took action
and the signal was eventually restored. She reiterated that
she
considers the use of the signal jammer to be a breach of the right to
freedom of expression and open access to Parliament.
[49]
Furthermore, certain members of the EFF became disruptive in
Parliament and were ordered to leave the Chamber, but they refused

and resisted attempts to be removed by the Sergeant-at-Arms.
Consequently, the Usher of the Black Rod and Parliamentary Protection

officers were called to assist. When the EFF members put up forceful
resistance the security services were called to assist in
terms of
the Powers, Privileges and Immunities of Parliament and Provincial
Legislatures Act 4 of 2004. The Speaker did not observe
any guards
attacking EFF members from behind. Her general impression was that
the struggles that ensued were precipitated by the
intransigence of
the EFF members.
[50]
The Speaker admits that she made a disparaging remark concerning Mr
Malema of the EFF. However, on 18 February 2015 she

unreservedly apologized for her extra-parliamentary conduct. The
apology was accepted by Mr Malema. The Speaker therefore contends

that the prompt apology and one error do not demonstrate incompetence
or disqualify her as a Speaker. The Speaker further denies
that she
made inappropriate media statements which created the perception of
lack of impartiality.
[51]
The Speaker in addition disputes allegations of improper conduct on 3
March 2015 when Agang withdrew the motion. There was
initially
confusion on the status of the motion since Agang had not delivered a
written notice of withdrawal to the secretary in
order to withdraw
the motion.  It was accepted that Agang had not formally moved
the motion. Consequently the Speaker allowed
the Whips of the largest
parties in the National Assembly to consult among themselves. The
Speaker concedes that she refused to
allow Agang to raise a point of
order since she was seeking advice at the time. A ruling was made in
Agang’s favour and it
was permitted to withdraw the motion.
Agang belatedly withdrew the motion due to the Speaker’s
refusal to accede to his requests
that she recuse herself and allow
voting by secret ballot. The Speaker says she acted reasonably and
cannot be castigated for criticizing
Agang for wasting the National
Assembly’s time.  The Speaker submits that she accepts
that her incumbency of the Office
of the Speaker entails neutrality
and non-partisanship and contends that at all times she executed her
duties as Speaker in accordance
with her oath of Office, applicable
legislation of the Republic of South Africa, Rules and Orders of
Parliament and the Constitution.
[52]
The Speaker highlighted the fact that parliamentary oversight over
the executive is an integral part of the parliamentary system
and it
is entrenched in the Constitution and given effect to in the Rules of
the National Assembly. With regard to the President’s

obligation to attend Parliament to answer questions, the Speaker
contends that she had at all times acted in accordance with the
Rules
and her approach had been reasonable and sound.
[53]
In reply the applicants contend that the Speaker’s
party-political affiliation and extra-parliamentary activities and

statements necessarily inform her conduct in the House, which in turn
informs the way she is viewed by Members of Parliament, the

electorate, the media and the public at large. The Speaker’s
prominent participation in political party activities outside
the
National Assembly cannot be considered in isolation from party
political battles as they unfold in the National Assembly.
Consequently whatever transpires in the National Assembly will colour
the Speaker’s conduct and statements in the public arena.
[54]
Applicants do not hold the view that the Speaker must sever all ties
with her political party. It is conceded that she may
remain a member
of her party. However, her party-political activity must not be such
as to create the impression that she is unlikely
to preside fairly
and impartially in the National Assembly. This has always been the
position and has remained the position in
the new political
dispensation.
[55]
It was further argued that the common law remains an important source
of law in the new Constitutional era. The Speaker cannot
dismiss
references to the history of the Office of the Speaker as unhelpful.
The position of Speaker in South Africa was modelled
on that of the
United Kingdom hence the Speaker wrongly maintains that the new
dispensation entirely abolished the Westminster
system in South
Africa, more particularly the functions of the Speaker. The
requirements of fairness and impartiality attaching
to the Office of
the Speaker are indispensable to the principles of a transparent
representative democracy and executive accountability
that lie at the
heart of the Constitution. The Constitutional Court, in
Mazibuko,
pertinently considered the manner in which a motion of no confidence
is handled in England, France and Australia.
[56]
The Speaker is disingenuous, it was contended, in invoking the
provisions of  s 19(1) (b) of the Constitution to justify
her
right to participate in political activity. A Speaker’s rights
become limited upon being elected to occupy that position.
The
Speaker does not discern that her office demands different standards
and her contention that no Court of law can declare her
unfit for
office flies in the face of the doctrine of legality. Furthermore,
the doctrine of separation of powers is not an absolute
bar to
judicial intervention, the applicants argued.
The
submissions by Second Respondent (the President)
[57]
The President argued broadly on salient issues regarding the relief
sought and aligned his argument with those of the Speaker.
He
reminded the Court that declaratory relief is discretionary and
granted in very limited circumstances.  He submitted,
furthermore, that the court should not sanction a vote by secret
ballot since it would go beyond the intra-parliamentary procedures

for debate on the issues. With reference to s 59(1)(b) of the
Constitution it was contended that the National Assembly should
conduct its affairs openly as compared to a secret ballot order which
is aimed at undermining a constitutionally ordained electoral
system
based on the political party list system of proportional
representation provided for in  s 47(3)(c) of the Constitution,

as well as s 57A read with schedule 1A to the
Electoral Act, 73 of
1998
. It was submitted that it is undesirable for the courts to
regulate the processes of the National Assembly and that the order
seeking
intervention by the court to sanction a secret balloting
procedure will impermissibly trench upon the doctrine of separation
of
powers not envisaged by the Constitution.
[58]
The President further contends that the applicants misconstrue the
role and Office of the Speaker by relying on pre-constitutional

authorities. Such pre-constitutional common law judicial
determinations must be viewed against the backdrop of their
constitutional
settings which are broadly different from the norms
our new Constitution order posits. Furthermore, any foreign law
references
should be dealt with cautiously. It was also contended
that the orders proposed in relation to the scheduling of the motion
of
no confidence have become moot due to the withdrawal of the motion
by Agang. Lastly, it was submitted that the Speaker has no power
to
Rule that a motion of no confidence in the President should be held
by secret ballot.
Overview
of Constitutional and Legislative Framework
[59]
South Africa is founded on the principles of Constitutional
supremacy, the rule of law, the doctrine of separation of powers

between the legislature, the executive and the judiciary, protection
of human rights as well as an independent judiciary.
[11]
According to
Seedorf
and Sibanda
[12]
separation
of powers means that specific functions, duties and responsibilities
are allocated to distinctive institutions with defined
areas of
competence and jurisdiction. They continue as follows:
“
Separation
of public powers is, in short, separation of public institutions
(legislature, executive and judiciary) and of public
functions, ie
the making of law, law application and execution, and dispute
resolution.
[13]
[60]
The doctrine of
separation
of powers system originates from Constitutional Principle VI of the
Interim Constitution of 1993 which provided that
'There
shall be a separation of powers between the legislature, executive
and judiciary, with appropriate checks and balances to
ensure
accountability, responsiveness and openness.
'
The final Constitution adopted in 1996 had to give effect to this
principle. T
he
separation of powers is premised on the principle that each branch of
government is independent, has a separate function and
unique powers
that the others cannot infringe upon. The doctrine therefore
recognizes the functional independence of the three
branches of
government, namely, the legislature, the executive and the judiciary.
In other words it recognizes that there is a
division of tasks
between those institutions which make the law, those which implement
the law and those which enforce the law.
One should not usurp the
functions and responsibilities of the other.
The
three branches are not hermetically sealed from each other and
exhibit a degree of overlap.
[14]
[61]
The limitations on the doctrine of separation of powers emerge
clearly from the First Certification Judgment
[15]
,
particularly where the Constitutional Court stated as follows:
“
There
is, however, no universal model of separation of powers and, in
democratic systems of government in which checks and balances
result
in the imposition of restraints by one branch of government upon
another, there is no separation that is absolute ...
The
principle of separation of powers, on the one hand, recognises the
functional independence of branches of government. On the
other hand,
the principle of checks and balances focuses on the desirability of
ensuring that the constitutional order, as a totality,
prevents the
branches of government from usurping power from one another. In this
sense it anticipates the necessary or unavoidable
intrusion of one
branch on the terrain of another.  No constitutional scheme can
reflect a complete separation of powers:
the scheme is always one of
partial separation.”
[62]
The Constitution does not explicitly mention the principle of
‘
separation
of powers’,
but
the constitutional design clearly embraces and entrenches it.   In
early accounts such as
Montesquieu’s
The
Spirit of the Laws
[16]
the
separation of powers or “
trias
politica”
was intended to guard against tyranny and preserve liberty. The
objective of separation of powers is to ‘
secure
the freedom of every citizen by seeking to avoid an excessive
concentration of power, which can lead to abuse, in one person
or
body’
.
[17]
The doctrine of separation of powers may be violated if one branch
interferes impermissibly with another’s performance of
its
constitutionally mandated functions or when one branch assumes a
function that is entrusted to another.
Section
165 of the Constitution vests judicial authority in the courts and
renders them “
independent
and subject only to the Constitution and the law
”.
Section 172 grants the judiciary the power to scrutinize the conduct
of the other two branches of government and declare
any law or
conduct inconsistent with the Constitution invalid. Judicial review
is essential for the maintenance and enforcement
of the separation of
powers and the balancing of power among the three branches of
government.
[63]
The principle of separation of powers has been traversed in a ‘
steady
trickle’
of judgments and is ‘
part
of our constitutional architecture’
.
[18]
In
National
Treasury and Others v Opposition to Urban Tolling Alliance and
Others
,
Moseneke DCJ emphasized this doctrine as a vital tenet of our
constitutional democracy.
[19]
The paramountcy of the Constitution, also with regard to proceedings
in Parliament and judicial oversight of such proceedings,
was
emphasised by Mahomed CJ in
Speaker
of the National Assembly v De Lille and Another,
[20]
as
follows:
“
This
enquiry must crucially rest on the Constitution of the Republic of
South Africa Act 108 of 1996.
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. Section 2 of the Constitution

expressly provides that law or conduct inconsistent with the
Constitution is invalid and the obligations imposed by it must be

fulfilled. It follows that any citizen adversely affected by any
decree, order or action of any official or body, which is not

properly authorised by the Constitution is entitled to the protection
of the Court. No Parliament, no official and no institution
is immune
from Judicial scrutiny in such circumstances.”
[64]
In
South
African Association of Personal Injury Lawyers v Heath and
Others,
[21]
the Constitutional Court stated that the courts do not only have the
right to intervene in order to prevent the violation of the

Constitution, but also have a duty to do so. At para 25 it was stated
as follows:
“
The
separation of the Judiciary from the other branches of government is
an important aspect of the separation of powers required
by the
Constitution and is essential to the role of the courts under the
Constitution. Parliament and the provincial legislatures
make the
laws but do not implement them. The national and provincial
executives prepare and initiate laws to be placed before the

legislatures, implement the laws thus made, but have no law-making
power other than that vested in them by the legislatures ...
Under
our Constitution it is the duty of the courts to ensure that the
limits to the exercise of public power are not transgressed
.
Crucial to the discharge of this duty is that the courts be and be
seen to be independent.” (my emphasis).
[65]
An independent judiciary is an essential part of the separation of
powers and the independence of the courts is protected by
the
Constitution which acts as a safeguard against interference with its
functioning.
[22]
In
Minister
of Health and Others v Treatment Action Campaign and Others,
[23]
the court held that:
“
The
primary duty of Courts is to the Constitution and the law, 'which
they must apply impartially and without fear, favour or prejudice'.

The Constitution requires the State to 'respect, protect, promote,
and fulfill the rights in the Bill of Rights'. Where State

policy is challenged as inconsistent with the Constitution, Courts
have to consider whether in formulating and implementing such
policy
the State has given effect to its constitutional obligations. If it
should hold in any given case that the State has failed
to do so, it
is obliged by the Constitution to say so. Insofar as that constitutes
an intrusion into the domain of the Executive,
that is an intrusion
mandated by the Constitution itself.”
[66]
In
Van
Rooyen and Others v The State and Others (General Council of the Bar
of South Africa Intervening)
[24]
the Court stated that:
“
In
a constitutional democracy such as ours, in which the Constitution is
the supreme law of the Republic, substantial power has
been given to
the Judiciary to uphold the Constitution. In exercising such powers,
obedience to the doctrine of the separation
of powers requires that
the Judiciary, in its comments about the other arms of the State,
show respect and courtesy, in the same
way that these other arms are
obliged to show respect for and courtesy to the Judiciary and one
another.”
[67]
In
Doctors
for Life International v Speaker of the National Assembly and
Others
[25]
in considering parliament’s primary function, the
Constitutional Court held that Parliament has a very special role to
play
in our constitutional democracy because it is the principle
legislative organ of State. With regard to its role, it must be
free
to carry out its functions without interference. The Court made these
points at para [37] and [38]:
“
[37]
The constitutional principle of separation of powers requires that
other branches of government refrain from interfering
in
parliamentary proceedings. This principle is not simply an abstract
notion; it is reflected in the very structure of our government.
The
structure of the provisions entrusting and separating powers between
the legislative, executive and judicial branches reflects
the concept
of separation of powers. The principle 'has important
consequences for the way in which and the institutions by
which power
can be exercised'. Courts must be conscious of the vital limits on
judicial authority and the Constitution's design
to leave certain
matters to other branches of government. They too must observe the
constitutional limits of their authority. This
means that the
Judiciary should not interfere in the processes of other branches of
government unless to do so is mandated by
the Constitution.”
[38]
But under our Constitutional democracy, the Constitution is the
supreme law. It is binding on all branches of government and
no less
on Parliament. When it exercises its legislative authority,
Parliament ‘must act in accordance with, and within
the limits
of, the Constitution’ ... This Court ‘has been given the
responsibility of being the ultimate guardian of
the
Constitution and its values’.”
[68]
In
Pharmaceutical
Manufacturers Association of South Africa and Another:
In
Re
Ex
Parte President of the Republic of South Africa and Others
[26]
and
Carmichele
v Minister of Safety and Security and Minister of Justice and
Constitutional Development
[27]
the Constitutional Court
established that there is no executive, administrative, parliamentary
or judicial conduct, and no law
whatsoever, including amendments to
the Constitution (which are, at the very least, subject to procedural
review), that escape
constitutional scrutiny.
[28]
The
Court in
Glenister
v President of the Republic of South Africa and Others
[29]
at para [33] and [44] held that:
“
[33]
…
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 powers.
[44]  ...
While duty-bound to safeguard the Constitution, [the Courts] are also
required not to encroach on the powers of the
executive and
legislature.”
[69]
In our constitutional democracy all public power is subject to
constitutional control.
[30]
The exercise of public power is only legitimate where it
is lawful and this principle of legality is generally understood
to
be a fundamental principle of constitutional law.
[31]
Further, Chaskalson CJ in
Pharmaceutical
Manufacturers Association of SA: In re Ex parte President of the
Republic of South Africa
[32]
held that:
“
It
is a requirement of the rule of law that the exercise of public power
by the Executive and other functionaries should not be
arbitrary.
Decisions must be rationally related to the purpose for which
the power was given, otherwise they are in effect
arbitrary and
inconsistent with this requirement. It follows that in order to pass
constitutional scrutiny the exercise of public
power by the Executive
and other functionaries must, at least, comply with this
requirement. If it does not, it falls short
of the standards
demanded by our Constitution for such action.”
[70]
In
Affordable
Medicines Trust and Others v Minister of Health and Others
[33]
the Constitutional Court succinctly summarized the doctrine of
legality at para [48], [49] and [86]:
“
[48]
... This commitment to the supremacy of the Constitution and the rule
of law means that the exercise of all public power is
now subject to
constitutional control.
[49]
The exercise of public power must therefore comply with the
Constitution, which is the supreme law, and the doctrine of legality,

which is part of that law. The doctrine of legality ... is one of the
constitutional controls through which the exercise of public
power is
regulated by the Constitution. It entails that both the Legislature
and the Executive ‘are constrained by the principle
that they
may exercise no power and perform no function beyond that conferred
upon them by law.’ In this sense the Constitution
entrenches
the principle of   legality and provides the foundation for the
control of public power.
[86]
...
The rational basis test involves
restraint on the part of the Court. It respects the respective roles
of the courts and the Legislature.
In the exercise of its legislative
powers, the Legislature has the widest possible latitude within the
limits of the Constitution.
In the exercise of their power to review
legislation, courts should strive to preserve to the Legislature its
rightful role in
a democratic society ... ”
[71]
As far as the application of the doctrine of separation of powers and
the rule of law is concerned, the Constitutional Court
has confirmed
in
Democratic
Alliance     v President of the Republic of South
Africa and Others
[34]
at
para [41] and [42] that:
“
[41]
…The rule that executive decisions may be set aside only if
they are irrational and may not ordinarily be
set aside because they
are merely unreasonable or procedurally unfair has been adopted
precisely to ensure that the principle of
separation of powers is
respected and given full effect. If executive decisions are too
easily set aside, the danger of courts
crossing boundaries into the
executive sphere would loom large ...
[42]
It is evident that a rationality standard by its very nature
prescribes the lowest possible threshold for the validity of
executive decisions: It has been described by this Court as the
‘minimum threshold requirement applicable to the exercise
of
all public power by members of the Executive and other
functionaries.’ And the rationale for this test is ‘to
achieve
a proper balance between the role of the legislature on the
one hand, and the role of the courts on the other’.”
[72]
Parliament’s power and privilege to determine its own
proceedings and procedures is derived from s 57 of the Constitution.

Section 57(1)(a) and (b) of the Constitution provides that the
National Assembly may determine and control its own internal
arrangements,
proceedings and procedures and may make rules and
orders concerning its business, with due regard to representative and
participatory
democracy, accountability, transparency and public
involvement.
[35]
In
Executive
Council of the Western Cape v Minister for Provincial Affairs and
Constitutional Development
[36]
the
court stated the following with regard to the provisions of s 57:
“
It
is clear that this provision confers a power upon the National
Assembly to regulate its internal proceedings, business and working

committees. However, that power must be read in the context of the
other provisions of the Constitution regulating the National

Assembly, such as the regulation of the election and removal of the
Speaker and Deputy-Speaker, the regulation of the voting procedures

and quorums in the National Assembly and the regulation of public
access to the National Assembly. In addition, it should be noted
that
in the case of the national Legislature, the election, appointment
and functioning of what is, in effect, its executive committee,
the
President and Cabinet, is fully regulated by s 83 - 102.”
[73]
The provisions of s 57 which make the National Assembly the master of
its internal processes was interpreted by the Constitutional
Court in
Oriani-
Ambrosini
v
Sisulu, The Speaker of the National Assembly
[37]
at para [61] and [62] as follows:
“
[61]
The words ‘arrangements, proceedings and procedures’
indicate that the Assembly’s power to make
rules is limited to
the regulation of process and form, as opposed to content and
substance.
[62]
Of further importance is that the power of the National Assembly to
‘make rules ... concerning its business’ must
be
exercised ‘with due regard to representative and participatory
democracy, accountability, transparency and public involvement’.

Equally significant is the need for the rules to cater for ‘the
participation in the proceedings of the Assembly and its
committees
of minority parties represented in the Assembly, in a manner
consistent with democracy’…”
[74]
The Court in
De
Lille and Another v
Speaker
of the National Assembly,
[38]
held that
all
acts and decisions of Parliament are subject to the Constitution and
therefore subject to review by the courts. The court emphasized
that
while section  57(1) permits Parliament to determine and control
its internal arrangements, ‘
It
has only those powers vested in it by the Constitution expressly or
by necessary implication or by other statutes which are not
in
conflict with the Constitution’.
The Court went further to say that, ‘
It
follows therefore that Parliament may not confer on itself or on any
of its constituent parts, including the National Assembly,
any powers
not conferred on them by the Constitution expressly or by necessary
implication.’
The
Office of the Speaker of Parliament in South Africa
[75]
The Office of the Speaker occupies a pivotal position in achieving
and sustaining a vigorous and healthy system of a vibrant

parliamentary democracy. The Speaker’s powers, functions and
duties are traditional and ceremonial, statutory, procedural
and
administrative. In regulating the conduct and debate in the National
Assembly the Speaker is guided by the Powers, Privileges
and
Immunities of Parliament and Provincial Legislatures Act, No. 4 of
2004, as well as the Constitution, the Rules of the National
Assembly
and the Joint Rules of Parliament and Standing Orders. These powers
and duties are set out in detail in the National Assembly
Guide to
Procedure 2004 and essentially fall into three main categories:
75.1
Presiding over sittings of the National Assembly, maintaining order
and applying and interpreting its Rules, Orders,
precedents,
conventions and practices;
75.2
Acting as a representative and spokesperson for the National Assembly
with the Chairperson of the National Council of
Provinces (‘NCOP’)
for Parliament; and
75.3
As the Leader of the National Assembly, acting as the administrative
head and serving as the executive authority of Parliament.
[76]
The task of the Speaker to chair plenary meetings of the National
Assembly entails maintaining order, interpreting and ensuring

compliance with the rules and practices of the National Assembly, and
in general ensuring the smooth conduct of proceedings. The
Speaker
interprets and applies the Rules, responds to members’ points
of order and gives rulings where necessary. In giving
a ruling on
procedure either at his or her own initiative or in response to a
point of order the Speaker is guided by the Rules,
conventions,
practices as well as precedent.  The Speaker may also give a
ruling or frame a rule to cover a situation for
which the Rules of
the National Assembly do not provide and such a rule remains in force
until considered by the Rules Committee.
In the performance of his or
her duties, he or she is required to show complete impartiality and
give a completely objective interpretation
of the rules and practice.
The Speaker has final authority in enforcing and interpreting the
rules of the National Assembly.
[77]
One of the Speaker’s vital functions is to maintain order in
the National Assembly. It is the Speaker’s responsibility
to
enforce rules for preserving order in parliamentary proceedings. The
Rules provide the Speaker with disciplinary powers of varying

severity to enable him or her to deal with various situations
appropriately. It is customary, however, for such powers to be used

sparingly. The Speaker is required to act fairly and impartially and
ensure that the rights of all parties, including minority
parties,
are protected.
When presiding over
sittings of the National Assembly the Speaker should guard and
protect the members’ rights of political
expression entrenched
in the Constitution.
[78]
The Speaker represents the National Assembly in its interactions with
the President, other organs of State, judiciary, public,
media and
international bodies or States. While members of Parliament represent
their individual constituencies, the Speaker represents
the full
authority of the House itself. The Speaker therefore speaks for the
House as a whole and must make decisions that are
in the best
interest of the National Assembly as a whole. By common consent the
Speaker’s judgment is normally unquestioned
and the Speaker is
looked upon as the guardian of parliamentary democracy.
[79]
The legal system of South Africa has developed a strong set of
traditions concerning the Speaker of Parliament which were retained

from the Westminster system of government.  According to these
traditions the Speaker of Parliament must maintain the neutrality
of
the office, must act with fairness, without favouritism and with
impartiality.  The 2004 Guide to National Assembly Procedure

states explicitly that the role of the Speaker must be executed in a
manner that displays fairness, impartiality, protects the
rights of
all parties and advances the interests of Parliament.
[80]
Section 52(1) read with subsection 4 of the Constitution of the
Republic of South Africa
[39]
provides that the National Assembly must elect a Speaker from among
its members and that the Speaker may be removed from the office
by a
resolution of the House, provided a majority of the members of the
National Assembly are present.  The Speaker holds
office for the
duration of the term of an Assembly, and ceases to hold office when
he or she ceases to be a member of the Assembly.
[81]
There are clear indications in the Rules, Constitution and court
judgments that the Speaker is required to be independent,
impartial
and fair.
The
Supreme Court of Appeal in
Gauteng
Provincial Legislature v Kilian
[40]
explained that the Speaker ‘
should
not submit to [political pressure]. He is required by the duties of
his office to exercise, and display, the impartiality
of a judge
’.
In
Lekota
and Another v Speaker, National Assembly and Another
[41]
the court held that ‘
the
Speaker, although affiliated to a political party, is required to
perform the functions of that office fairly and impartially
in the
interests of the National Assembly and Parliament’.
[82]
The South African Constitution and Rules
of Parliament do not give clear guidelines regarding the most
appropriate manner to protect
the Speaker's impartiality and do not
require the Speaker to resign from a political party.  There are
no provisions in the
Constitution which specifically deal with the
role and powers of the Speaker. However, as administrative leader of
the National
Assembly, the Speaker has an implicit duty to uphold the
dignity and authority of the Assembly, thereby enhancing its ability
to
fulfill its constitutional mandate to pass legislation in a manner
that promotes a participatory and representative democracy, and
to
hold the executive to account.
Does
Rule 102A adequately address the defects identified in Mazibuko
[83]
Section 102(2) of the Constitution provides for parliamentary control
over the executive and provides for a vote of no confidence
directed
against the President in the following terms:
‘
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.’
[84]
The Constitution does not prescribe the procedure or any substantive
requirements for a motion of no confidence in the President.
Section
102(2) must be read in conjunction with s 57(1)(a) of the
Constitution which provides that “
The
National Assembly may determine and control its internal
arrangements, proceedings and procedures”.
It
follows from s 57(1) of the Constitution that it is the National
Assembly which must determine and control the “
arrangements,
proceedings and procedures
” for a
motion of no confidence in the President and further that it may do
so in its “
rules and orders
concerning its business.”
[85]
In
Mazibuko
a
constitutional challenge arose out of the fact that Chapter 12 of the
National Assembly Rules conferred on the Programme Committee
the
power to decide whether a motion of no confidence should be scheduled
for debate before the National Assembly
[42]
;
provided that any question before the Committee must be decided by
majority vote
[43]
; and
consequently allowed a majority in the Committee to block an effort
to schedule a motion of no confidence for debate in the
National
Assembly
[44]
. The
Constitutional Court found it is inimical to the vital purpose of s
102(2) of the Constitution that a motion of no confidence
in the
President will reach the National Assembly only if the majority in
the Programme Committee agree to its scheduling
[45]
.
The Constitutional Court found that Chapter 12 of the Rules of the
National Assembly was inconsistent with the Constitution to
the
extent that it did not fully provide for the considerations of
motions of no confidence by the National Assembly envisaged
in s 102
(2). The rules did not properly allow for a member or political party
represented in the Assembly to vindicate the right
to have a motion
of no confidence in the President scheduled for debate and voted upon
in the National Assembly within a reasonable
time, or at all.
[46]
[86]
The Constitutional Court held that a motion of no confidence is a
“
vital
tool to advance our democratic hygiene”
[47]
and emphasized the vital purpose of motions of no confidence, which
ensure that the President and executive are accountable to
the
Assembly made up of elected representatives.
[48]
The Court stated that a vital constitutional entitlement to move a
motion of no confidence in the President cannot be left to the
whim
or discretion of the majority or minority of members serving on the
programme committee or any other committee of the National
Assembly.
The Court held that a vote of no confidence in the President must
occur in the National Assembly itself
[49]
and that:
86.1
Any member of the National Assembly has the right to formulate and
request to have a motion of no confidence
serve before and voted for
in the National Assembly.
[50]
86.2
The Constitution requires that the National 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.
[51]
86.3
In order for members of the National Assembly to vote on a motion,
the rules of the National 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.
[52]
[87]
The National Assembly therefore introduced NA Rule 102A(1) to give
effect to the
Mazibuko
directives. The rule provides that any member may formulate and
request to have a motion of no confidence served before and voted
for
in the National Assembly. This rule also provides for the motion to
be brought to the notice of members of the National Assembly.
This is
clearly in compliance with the Constitutional Court’s
directives in
Mazibuko.
[88]
NA Rule 102A(2) makes provision for consultation with the Leader of
Government Business and the Chief Whip of the Majority
Party. The
Constitutional Court was mindful of the serious consequences of a
vote of no confidence for the President, cabinet ministers
and the
ruling party. If the motion is adopted this usually entails that the
President and his cabinet ministers have to resign,
since the
executive needs the support of the majority of members in Parliament
to remain in power.  Consequently, it was observed
by the
Constitutional Court that all concerned in the National Assembly must
be afforded the space to consider and prepare for
the pending debate
on the motion.
[53]
[89]
In terms of the Rules of the National Assembly, the Chief Whip (a
term which is defined as the Chief Whip of the majority party)
is
accorded a specific role in respect of the arrangement of business on
the Order Paper. NA Rule 222 provides:
“
222.
Arrangement of business on Order Paper
The
Chief Whip must arrange the business of the Assembly on the Order
Paper, subject to these Rules, the directives of the Programme

Committee and the concurrence of the Leader of Government Business
when any
government business is
prioritised
.”
[90]
The Office of the Leader of Government Business is established by the
Joint Rules, namely Joint Rule 149. The incumbent must
be a Cabinet
member designated by the President (currently Deputy President
Ramaphosa). The Joint Rules provide that the Leader
of Government
Business in Parliament is responsible for:
90.1
The affairs of the National Executive in Parliament (which includes
the President);
90.2
The programming of Parliamentary business initiated by the National
Executive, within the time allocated for that purpose;
90.3
Arranging the attendance of Cabinet members, as appropriate, in
respect of parliamentary business generally; and
90.4
Performing any other function provided for by the Rules or a
resolution of the National Assembly or the Council or resolutions

adopted in both Houses.
[91]
NA Rule 190 provides that the Programme Committee may take decisions
and issue directives and guidelines to prioritise or postpone
any
business of the National Assembly, but when the Committee prioritises
or postpones any government business in the National
Assembly it must
act with the concurrence of the Leader of Government Business. It can
therefore not be disputed that both the
Leader of Government Business
and the Chief Whip play an indispensable part in the scheduling of
Parliamentary business and specifically
in the prioritization of
Government Business.
[92]
The requirement that the Speaker must consult with the Chief Whip and
the Leader of Government Business does not mean their
concurrence is
necessary. The Courts have held as follows in regard to the meaning
of the act of consultation:
92.1
The essence of consultation is the communication of a genuine
invitation, extended with a receptive mind, to give advice.
[54]
It would normally be understood as a meeting or conference at which
discussions take place, ideas are exchanged and advice or guidance
is
sought or tendered.
[55]
92.2
Consultation entails a process in which more than one person confers
in the sense of applying their minds
together to
consider the pros and cons of a matter. It may be formal or informal
or oral or in writing. The essence of consultation
is a communication
of ideas on a reciprocal basis. The procedure is in the discretion of
the person who has to consult. The procedure
must, however, allow
reasonable opportunity to both sides (the consulting and the
consulted parties) to communicate effectively
and achieve the purpose
for which prior consultation is prescribed.
[56]
92.3
The form of consultation is usually not important as long as the
lines of communication are open and the parties are
afforded a
reasonable opportunity to put their cases or points of view to one
another.
[57]
[93]
NA Rule 102A(2) merely means that the Speaker must consult and give
serious consideration to the views of the Chief Whip and
the Leader
of Government Business. The fact that the Speaker is required to
consult with the Chief Whip and the Leader of Government
Business
does not detract from her obligation to schedule the motion with “
due
priority
”
irrespective of whether or not they support its scheduling. The
consultation procedure does not grant the Speaker, the Chief
Whip or
the Leader of Government Business a discretion to deny the scheduling
of the motion. On a proper interpretation of NA Rule
102A the Speaker
is obliged to accord a motion of no confidence priority
notwithstanding the consultation process and must ensure
that the
motion is scheduled, debated and voted on within a reasonable period.
Considering the relevant roles of the Chief Whip
and the Leader of
government business in the National Assembly, I am of the view that
the Speaker’s obligation to consult
with both of them is
considerably reasonable and rational. There is no substance in the
allegation that the NA Rule 102A(2) is
vulnerable to manipulation and
procrastination. There is no evidence that the consultation procedure
is designed to unreasonably
delay, postpone, or frustrate the tabling
and scheduling of a motion of no confidence.
[58]
These are bald and unsubstantiated averments.
[94]
It was contended by the applicants that NA Rule 102A makes no
provision for minority participation in deciding when a vote
of no
confidence should be scheduled. According to applicants there must be
room for minority participation in the enrolment of
a motion of no
confidence. The Programme Committee on which minorities are
represented was effectively ousted and only those affected
by the
vote are now to be consulted, and consequently the prioritisation of
a motion of no confidence is within the gift of the
majority. I am
mindful of the views expressed by Moegoeng CJ in
Oriani
-
Ambrosini
v Sisulu
,
The
Speaker of the National Assembly
[59]
regarding
the participation of minority parties represented in the National
Assembly in decision-making processes. I am therefore
aware that our
democracy values fair and equal participation in the processes that
lead to the decisions that are ultimately taken
in Parliament. While
the majority ultimately decides what the decision is, the minority
must have a fair opportunity to take part
in the deliberation that
leads to the decision. As stated by Sachs J in
Democratic
Alliance v Masondo,
[60]
“
It
should be underlined that the responsibility for serious and
meaningful deliberation and decision-making rests not only on the

majority, but minority groups as well. ... Majority rule, within the
framework of fundamental rights, presupposes that after proper

deliberative procedures have been followed, decisions are taken and
become binding.”
[95]
On a proper construction of NA Rule 102A, it is the Speaker that is
responsible for the scheduling of the motion of no confidence.
The
consensus requirement which previously benefited the majority within
the Programme Committee has effectively been removed.
[61]
The Rule provides that the motion
must
be scheduled for debate and it
must
be done within a reasonable time. The decision-making process for the
tabling and scheduling of a vote of no confidence is no longer
at the
discretion of the majority or minority since the provisions of NA
Rule 102A(5) are peremptory. The applicants’ contention
that
the scheduling of a motion of no confidence is effectively left in
the hands of the ruling party is therefore unfounded. I
am satisfied
that the exclusion of minority parties in the consultation process
with regard to the scheduling decision does not
undermine the rights
of minority parties. The Speaker is obliged as administrative head of
the National Assembly to schedule the
motion upon compliance with
relevant prescripts of NA Rule 102A. In the event of the Speaker
failing to comply with her scheduling
obligations in terms of NA Rule
102A her conduct may be subjected to judicial review.
[96]
NA Rule 102A (3) to (5) require that the Speaker be satisfied that
the motion of no confidence in the President complies with
certain
prescripts, and further that the motion must include the grounds on
which the motion is based. It is alleged that these
subrules are also
inconsistent with
Mazibuko
in that they provide too much scope for manipulation and
procrastination. Furthermore they are alleged to be unnecessarily
restrictive
in as much as they require grounds on which the motion of
no confidence is based to be included in the motion. In my view these

requirements are indeed necessary for the purposes of preparing
adequately for debate on the motion. The inclusion of the grounds
as
required by Rule 102A(3) promotes an open and transparent process
where all members can discern the precise nature and reasons
for the
motion.  These provisions did not pose any problems for Agang
and the motion tabled on 4 November 2014 was not rendered
deficient
and did not require any amendment as contemplated in NA Rule 102A(4).
[97]
Furthermore, none of the standards and measures provided for in the
sub rules exceed the proper bounds of the regulation of
the exercise
of the right of any member of the National Assembly to formulate a
motion of no confidence and have it debated and
determined by the
National Assembly. These elements of NA Rule 102A significantly
constrain and condition the exercise of the discretion
conferred on
the Speaker. In my view none of the requirements outlining the
necessary standards to be complied with before consideration
for
scheduling the motion are unnecessarily restrictive.  Applicants’
contentions with regard to the relevant prescripts
of the rules
cannot be sustained. I am satisfied that members will be able to
discern with reasonable certainty what is required
by them so that
they may regulate their conduct accordingly.
[62]
I am therefore satisfied that subparagraphs (3), (4) and (5) are
compliant with
Mazibuko
and
withstand scrutiny.
[98]
The Constitutional Court did not prescribe preconditions or a
predetermined time within which a motion of no confidence should
be
scheduled and voted on by the National Assembly. It appears that the
Constitutional Court specifically refrained from imposing
a specific
time requirement. In
Mazibuko
the Constitutional Court deemed
it unnecessary to go as far as the High Court where it was held that
a vote of no confidence in
the President “
is inherently
urgent
”, but rather found it sufficient to
say
that the motion must be accorded priority.
[63]
The Court noted that the Constitution does not set a time or
preconditions for when the National Assembly may vote on a motion
of
no confidence in the President.
[64]
The Court also stated that when a member or a political party within
the National Assembly, acting alone or in concert with other
members
of the National Assembly, tables a motion of no confidence in terms
of s 102(2) in accordance with the rules, the motion
deserves the
serious and prompt attention of the responsible committee or
committees of the National Assembly and, in the last
resort, of the
National Assembly itself.
[65]
The Court also reasoned that the urgency of a motion of no confidence
in the President must be coloured by the consideration that
the
National Assembly has the constitutional authority to “
determine
and control its internal arrangements, proceedings and
procedures
”
[66]
.
The Court found that it is sufficient that the motion be accorded
priority over other motions and business by being scheduled,
debated
and voted on within a reasonable time given the programme of the
National Assembly.
[67]
[99]
The Constitutional Court specifically refrained from imposing a
specific time requirement within
which such a motion has to be
scheduled, debated and voted on.  If this Court were to
prescribe a specific period within which
to schedule a debate on a
motion of no confidence it would be unduly prescriptive to the
Speaker and the National Assembly as to
how and when to schedule its
own business. It is not competent for this Court to dictate specific
time periods to the National
Assembly and interfere with the business
of the National Assembly in such a manner. In doing so the Court
would be overstepping
the boundaries of separation of powers. This
Court
will
be guided by the approach adopted by the Constitutional Court and
similarly not be prescriptive to the National Assembly in
this
regard. In my view NA Rule 102A is compliant with the reasoning and
order of the Constitutional Court in
Mazibuko
regarding the time within which a motion of no confidence in the
President must be scheduled for debate and voting in the National

Assembly.
[100]
I am accordingly satisfied that Rule 102A is in compliance with the
Constitutional Court’s directives in
Mazibuko
in that Parliament’s internal
rules now provide for a political party represented in, or any member
of, the National Assembly
to table a motion of no confidence in the
President, and have it scheduled for debate and voted upon in the
National Assembly within
a reasonable time. In terms of the Rules of
the National Assembly there are various structures in place to deal
with the Rules
of the National Assembly. It has a Rules committee,
the Subcommittee on Review of the National Assembly Rules and the
Subcommittee
on Powers and Privileges of Parliament. These structures
of the National Assembly were established to deal with the
development
of rules and policies concerning the business of the
National Assembly and to make recommendations to the Rules Committee.
NA Rule
102A came into operation on 25 February 2014 and has not been
subjected to any challenge until now, in these proceedings. It is

unfortunate that these proceedings have been instituted without
parliamentary structures having considered and debated the
applicants’
complaints.
Mootness
of Relief sought in 4.3
[101]
Section 21(1)(c)
of the
Superior Courts Act No. 10 of 2013
,
provides that a Division of the High Court has the power “
in
its discretion, and at the instance of any interested person, to
enquire into and determine any existing, future or contingent
right
or obligation, notwithstanding that such person cannot claim any
relief consequential upon the determination”.
The question
of mootness is relevant to a court in exercising its discretion to
grant a declaratory order. In the exercise of its
discretion the
applicable legal principles are as follows:  Mootness is not an
absolute bar in deciding an issue, and the
question is whether the
interests of justice require
that
it be decided. The general principle is that a court may decline to
issue a declaratory order for the purpose of answering
a
hypothetical, abstract or academic question. Furthermore, a relevant
consideration is whether the order that the court may make
will have
any practical effect on the parties or others.
[68]
[102]
The respondents contend that the relief sought by applicants
regarding the scheduling of first applicant’s
motion has been
rendered moot by the withdrawal of the motion on 3 March 2015. The
applicants on the other hand contend that they
are entitled to the
declaratory order sought in paragraph 4.3 because it is “
a
matter of great public importance, fundamental constitutional
principles are at stake, and the alleged violation is prone to
recurrence
”.
Innes CJ stated in
Geldenhuys
and Neethling v Beuthin
[69]
at 441:
“
[C]ourts
of law exist for the settlement of concrete controversies and actual
infringements of rights, not to pronounce upon abstract
questions, or
to advise upon differing contentions, however important.”
In
National
Coalition for Gay and Lesbian Equality and Others v Minister of Home
Affairs and Others
[70]
the court stated that a case is moot and therefore not justiciable if
there is no live controversy which should exist if the court
is to
avoid giving advisory opinions on abstract propositions of law.
[103]
In
Legal
Aid South Africa v Magidiwana and Others
[71]
Ponnan
JA examined case law authorities on the subject and stated that,
broadly, the court will decline granting a declarator if
the matter
has become moot in the sense that there are no live disputes, if
doing so will amount to giving parties advice gratuitously,
if doing
so will effectively amount to pronouncement on abstract, academic and
hypothetical questions and the order will have no
practical effect
and if the issue is of no future public importance. The proper limits
of the court’s discretion were summarized
by Wallis JA in
Qoboshiyane
NO and Others v Avusa Publishing Eastern Cape (Pty) Ltd and
Others
[72]
at
para 5:
“
The
court has a discretion in that regard and there are a number of cases
where, notwithstanding the mootness of the issue as between
the
parties to the litigation, it has dealt with the merits of an appeal.
With those cases must be contrasted a number where the
Court has
refused to deal with the merits. The broad distinction between the
two classes is that in the former a discrete legal
issue of public
importance arose that would affect matters in the future and on which
the adjudication of this court was required,
whilst in the latter no
such issue arose”.
[104]
The doctrine of mootness is well developed in American constitutional
law jurisprudence. Accordingly a case is
moot if it:
‘
seeks
to get a judgment on a pretended controversy, when in reality there
is none, or a decision in advance about a right before
it has
actually been asserted and contested, or a judgment upon some matter
which, when rendered, for any reason, cannot have any
practical
effect upon a then existing controversy’.
[73]
[105]
The motion of Agang was duly scheduled for debate on 3 March 2015.
Instead of proceeding with the motion, the
party decided to withdraw
same on the basis that its request for the recusal of the Speaker and
voting by secret ballot was denied.
All indications are that the
Agang had agreed to the scheduling of the motion being postponed to
the next sitting subject to certain
conditions. I am therefore
satisfied that the real issue in contention was not the actual
scheduling of the motion, but the conditions
attached thereto. The
Speaker had given a clear indication on 25 November 2014 that Agang’s
request for her recusal and a
secret ballot would not be acceded to.
It is incomprehensible for Agang to now contend that the Speaker’s
failure to ensure
that its motion was scheduled, debated on and voted
for on or before the National Assembly went into recess on 28
November 2014
was inconsistent with s 102(2) of the Constitution and
NA Rule 102A, in circumstances where Agang had no intention to
proceed with
the motion in the absence of compliance with its
conditions. In any event the Speaker had given an unequivocal
undertaking during
interim proceedings in this matter that should
Agang withdraw its motion and then seek to re-enlist it at a later
stage after the
determination of this application, she would
re-enlist it as soon as practically possible but without unreasonable
delay.
[106]
The Court is now asked to determine whether or not the delay in the
scheduling of the motion was reasonable or
unreasonable in
circumstances where the motion had been withdrawn. In my view the
scheduling of the withdrawn motion is now a matter
of historical
importance or academic interest only. Any pronouncement and analysis
on the sequence of events leading to the scheduling
of the motion
would be purely hypothetical and a futile exercise. Furthermore,
pronouncements on previous conduct relating to the
reasonableness of
the time period within which the motion should have been scheduled
and voted on will serve no future practical
importance. The motion in
respect of the relief sought in terms of 4.3 was withdrawn and there
is no live issue between the parties
in this regard. In any event the
relief sought in 4.3 had been overtaken by events when a vote of no
confidence in the President
was debated in the Assembly on 17 March
2015. As such, I find the relief sought in terms of 4.3 to be moot.
Was
the Speaker’s scheduling decision consistent with Mazibuko
[107]
In the event that this Court is found to have erred in finding that
the relief sought in 4.3 of the Notice of
Motion is moot, it is
necessary to consider the merits of the scheduling decision. The
applicants contend that the Speaker’s
decision not to schedule
first applicant’s motion of no confidence before the end of the
last term of the Fifth Parliament
in 2014 did not comply with the
Mazibuko
directives in that it was not accorded due priority over other
motions, given the programme of the National Assembly. The Speaker

contends that she has complied with NA Rule 102A.
[108]
The Speaker explained the extent of the business schedule of the
National Assembly during the period when the
motion was tabled by
Agang. She also explained the indispensable role played by the Chief
Whip and Leader of Government Business
which necessitated
consultation with them. Her overall assessment at the time was that
there would not be sufficient time for members
to consider and
prepare for a proper debate on the first applicant’s motion
given the importance thereof. The motion was
therefore scheduled for
consideration as soon
as
possible in the next annual sitting in terms of the provisions of NA
Rule 102A(7). The Speaker expressed the view that the motion
was
afforded due priority, and was scheduled within a reasonable time
having regard to the programme of the National Assembly.
[109]
The Courts’ appreciation for the constitutional role of other
branches of government in accordance with
the doctrine of separation
of powers is often inextricably linked to the question of the
appropriate level of “deference”
the Court must show to
other branches of government.
Hoexter
defined judicial
deference as:
“
(
A)
judicial willingness to appreciate the legitimate and
constitutionally-ordained province of administrative agencies; to
admit
the expertise of those agencies in policy-laden or polycentric
issues; to accord their interpretation of fact and law due respect;

and to be sensitive in general to the interests legitimately pursued
by administrative bodies and the practical and financial constraints

under which they operate.”
[74]
[110]
In
Minister
of Environmental Affairs and Tourism v Phambili Fisheries (Pty) Ltd;
Minister of Environmental Affairs and Tourism v Bato
Star Fishing
(Pty) Ltd
[75]
Schutz JA held that judicial deference “
manifests
the recognition that the law itself places certain administrative
actions in the hands of the Executive, not the Judiciary”.
In
Bato
Star Fishing (Pty) Ltd v Minister of Environmental Affairs
[76]
O’
Reagan J held at paragraph [46] that the need for courts to show
deference to decision makers did not flow from “
judicial
courtesy or etiquette
”
but “
from
the fundamental constitutional principle of the separation of powers
itself”.
The
Court stated further at para 48:
“
In
treating the decisions of administrative agencies with the
appropriate respect, a Court is recognising the proper role of the

Executive within the Constitution. In doing so a Court should be
careful not to attribute to itself superior wisdom in relation
to
matters entrusted to other branches of government. A Court should
thus give due weight to findings of fact and policy decisions
made by
those with special expertise and experience in the field. The extent
to which a Court should give weight to these considerations
will
depend upon the character of the decision itself, as well as on the
identity of the decision-maker. A decision that requires
an
equilibrium to be struck between a range of competing interests or
considerations and which is to be taken by a person or institution

with specific expertise in that area must be shown respect by the
Courts.”
[111]
Generally, the courts are more prepared to defer on matters of fact
or policy rather than law or constitutional
interpretation. In
National
Coalition for Gay and Lesbian Equality and Others v Minister of Home
Affairs and Others
[77]
,
Ackerman J, stated that:
“
The
other consideration a court must keep in mind is the principle of the
separation of powers and, flowing therefrom, the deference
it owes to
the legislature in devising a remedy for a breach of the Constitution
in any particular case. It is not possible to
formulate in general
terms what such deference must embrace, for this depends on the facts
and circumstances of each case. In essence,
however, it involves
restraint by the Courts in not trespassing onto that part of the
legislative field which has been reserved
by the Constitution, and
for good reason, to the legislature.”
[112]
In
International
Trade Administration Commission v SCAW South Africa (Pty) Ltd
[78]
at
paras 91 and 92 the court stated that our  ‘
[c]ourts
are carving out a distinctly South African design of separation of
powers
’
and “
all
public power is subject to constitutional control
”.
The Court continued at para 95:
“
Where
the Constitution or valid legislation has entrusted specific powers
and functions to a particular branch of government [the
National
Assembly], courts may not usurp that power or function by making a
decision of their preference. That would frustrate
the balance of
power implied in the principle of separation of powers. The primary
responsibility of a court is not to make decisions
reserved for or
within the domain of other branches of government, but rather to
ensure that the concerned branches of government
exercise their
authority within the bounds of the Constitution. This would
especially be so where the decision in issue is policy-laden
as well
as polycentric.”
[113]
In terms of the National Assembly Guide to Procedure 2004 the Speaker
and the Chairperson of the Council (NCOP)
are the political heads of
the Parliamentary administration. In terms of the Rules of Parliament
the Speaker is entrusted with
specific powers and functions in
respect of a particular branch of government, and the courts may not
usurp that power or function
by making a decision of their
preference. NA Rule 102A essentially imposes an obligation on the
Speaker in connection with the
internal arrangements and processes of
Parliament. It provides the Speaker with a political discretion to
schedule the motion within
a reasonable time given the Programme of
the Assembly.
[114]
The Speaker, being an experienced politician, is elected by the
National Assembly and is specially placed to interpret
the rules, and
execute her functions in accordance with the Rules. The Speaker as
administrative head is best placed to fulfil
the obligation to
schedule the motion, which clearly involves polycentric
decision-making.  The Court recognizes her expertise
in
fulfilling her function in the House. In exercising its designated
judicial control over the actions of other branches of government
the
Court should always be mindful to show due deference to the autonomy
of Parliament and Presiding Officers in respect of the
deliberations
of Houses of Parliament. In my view the Speaker is entitled to a high
degree of deference by the Courts. There are
sufficient safeguards in
the form of review mechanisms in the event that the Speaker exercises
her powers in an arbitrary or irrational
manner or in violation of
the Constitution.
[115]
The Court is satisfied that considering the timing of the motion, and
the business schedule of Parliament, the
procedural process the
motion had to go through and the consultation requirements, the
reasons advanced by the Speaker as to why
the scheduling was moved to
the new term are reasonable and rational. Even if the applicants’
proposal with regard to the
scheduling would appear to be more
acceptable, it would not be open to the Court to adopt it for the
reason stated by Chaskalson
CJ in
Bel
Porto School Governing Body v Premier, Western Cape
[79]
at para [45] at 282F-G.
“
The
fact that there may be more than one rational way of dealing with a
particular problem does not make the choice of one rather
than the
others an irrational decision. The making of such choices is within
the domain of the Executive. Courts cannot interfere
with rational
decisions of the Executive that have been
made lawfully, on the grounds that they consider
that a different
decision would have been preferable.”
[116]
It is well established that the rationality standard does not have a
high threshold. The Court is satisfied that
it would be inappropriate
for the court to analyse all the minute details concerning factors
taken into account by the Speaker
in arriving at her decision. Any
attempt by the court to substitute the decision of the Speaker would
be tantamount to an intrusion
on the doctrine of separation of
powers. In any event final relief is being sought on motion and the
Speaker’s version of
events must be accepted unless it is
far-fetched, implausible and clearly untenable, which is not the case
here.
[80]
Secret
Ballot relief
[117]
The applicants seek an order directing the presiding officer over the
debate to ensure that Agang’s motion
of no confidence in the
President be voted on by way of secret ballot. In the alternative
they contend that it is within the authority
of the Speaker, there
being no rule in this regard, to determine upon request that a vote
of no confidence in the President should
be taken by way of secret
ballot. It is also submitted that NA Rule 2(1) is applicable since
the issue of secret ballots are not
dealt within the Rules. It is
argued that the court would exercise a purely judicial function by
granting such secret ballot relief.
[118]
Rule 2 of the NA’s Rules provides as follows:
“
2.
Unforeseen eventualities.
(1)
The Speaker may give a ruling or frame a Rule in respect of any
eventuality for which these Rules do not provide.
(2)
A Rule framed by the Speaker shall remain in force until a meeting of
the Rules Committee has decided thereon.”
[119]
The Rules of the National Assembly indeed do not provide for voting
by secret ballot. Provision is made for voting
procedures in Chapter
6 of the NA Rules and NA Rules 75 and 77 to 93 extensively deal with
voting.  The rules provide for
voting electronically, by voice
or by the Westminster tradition of division. Both the Western Cape
High Court and the Constitutional
Court in
Mazibuko
considered
the application of NA Rule 2(1) and confirmed that the Rule is meant
to cover matters not dealt with in the rules. The
Constitutional
Court further remarked as follows at para 29:
“
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.”
[120]
Given the specific provisions in the Rules dealing with voting, it
cannot be said that NA Rule 2(1) applies since
it deals with rulings
which cover matters not contemplated in the Rules. NA Rules 77 to 93
deal with voting processes, yet no provision
is made for voting by
secret ballot. In the circumstances, Rule 2(1) can provide no
recourse to the applicants. In his comparative
study
Bergougnous
noted
that it is rare for a Speaker to be totally free to determine voting
procedures.  In most cases voting occurs as prescribed
in the
rules which define precise circumstances in which a secret ballot or
public ballot must be held.
[81]
[121]
The Constitution provides for voting by secret ballot in electing the
President, Speaker and Deputy Speaker.
[82]
There is no implied or express constitutional requirement for voting
by secret ballot in respect of a motion of no confidence in
the
President. Applicants contended that it is imperative that members of
the National Assembly be given the opportunity to vote
according to
their consciences by way of secret ballot, thereby creating a better
opportunity for a truly democratic outcome. The
applicants contend
that any vote on a motion of no confidence would be rendered
nugatory, and incapable of vindicating the crucial
function of
holding the President accountable to Parliament, unless the vote is
by secret ballot. It was argued that members of
the ruling party
would be more inclined to vote according to their consciences should
voting occur by secret ballot.
However,
it was stated in
United
Democratic Movement v President of the Republic of South Africa and
Others
[83]
that
‘
Courts
are not ...  concerned
with
the motives of the Members of the Legislature who vote in favour of
particular legislation...’
In
Glenister
v President of the Republic of South Africa and Others
[84]
at para 54 the Court
stated:
“
...
It suggests further that the Executive followed the dictates of the
ruling party rather than its responsibilities in terms of
the
Constitution. In my view, there is nothing wrong, in our multiparty
democracy, with Cabinet seeking to give effect to the policy
of the
ruling party. Quite clearly, in doing so, Cabinet must observe its
constitutional obligations and may not breach the Constitution.”
[122]
In
Ferreira
v Levin NO and Others; Vryenhoek v Powell NO and Others
,
[85]
Chaskalson P stated that it is not for the courts to be concerned
with political questions but the function of the courts is instead
to
ensure that the implementation of political decisions conform to the
Constitution. Furthermore, ‘
In
a democratic society the role of the Legislature as a body reflecting
the dominant opinion should be acknowledged. It is important
that we
bear in mind that there are functions that are properly the concern
of the Courts and others that are properly the concern
of the
Legislature. At times these functions may overlap. But the terrains
are in the main separate, and should be kept separate.
’
[86]
[123]
The applicants conceded that they do not
rely on any single provision in the Constitution or the rules of the
National Assembly
in respect of the relief sought regarding voting by
secret ballot.
Section 57 of the
Constitution determines that the National Assembly is the master of
its own internal arrangements, proceedings
and procedures. As stated
above, the National Assembly’s power to make rules is limited
to the regulation of processes and
form as opposed to content and
substance. It is within the power and privilege of the National
Assembly to amend the Rules of the
National Assembly to provide for
voting by secret ballot. The absence of a specific rule providing for
voting by secret ballot
appears to be a deliberate choice and not an
omission or oversight in the formulation of the Rules. The approach
adopted by the
Constitutional Court in
Mazibuko
was that while the court will not prescribe to the Assembly how to
formulate its rules, it will give effect to the duties placed
on
Parliament by the Constitution.
The
Constitutional Court was specifically mindful of its judicial limits
not to impose specific rules on the National Assembly.
I
am satisfied that a
Court should not
lightly impose a Rule to regulate parliamentary procedures unless it
is required to fulfil a constitutional requirement.
It is
not within the authority of this Court to introduce the element of a
secret ballot in instances other than those prescribed
by the
Constitution. The Court is not mandated to prescribe to the National
Assembly on how to conduct its voting procedures. In
my view the
effect of granting the relief sought in respect of voting by secret
ballot would offend against the provisions of s
57 of the
Constitution as well as the doctrine of separation of powers in that
it would in effect amount to the court formulating
rules for the
National Assembly. Consequently all the various permutations of the
challenge in respect of voting by secret ballot
on a motion of no
confidence fall to be dismissed.
Fitness
and propriety of Speaker
[124]
The applicants seek a declarator that the Speaker is not fit and
proper to hold the Office of the Speaker. The
tradition of an
impartial Speaker in Parliament dates back to the 14
th
century in England and is prevalent where parliaments developed from
the Westminster System.
[87]
However, the tradition of impartiality is neither a legal imperative
nor a universally applied principle. During the pre-constitutional

era the Office of the Speaker closely followed the Westminster
system. The applicants rely on the role of the Speaker in the
Westminster
tradition and assert that the incumbent must be fit and
proper to hold that office. It appears they are asserting the
existence
of a rule or principle of South African common law laying
down such requirement. The respondents expressed the view that there
is no rule of common law or English parliamentary law which requires
that to be elected and remain as Speaker you must be fit and
proper.
[125]
The Constitutional Court has defined ‘fit and proper’ as
follows in
Helen
Suzman Foundation v President of the Republic of South Africa and
Others
[88]
at
para [63]:
“
[B]roadly
speaking, [
fit and proper
]
means that the candidate must have the capacity to do the job well
and the character to match the importance of the office. Experience,

integrity and conscientiousness are all intended to help determine a
possible appointee’s suitability ‘to be entrusted
with
the responsibilities of the office concerned’.”
[126]
In
Democratic
Alliance v President of the Republic of South Africa and Others
[89]
(Simelane)
the Constitutional Court held that the requirement of “
fit
and proper
”
was an objective jurisdictional fact and involves a value judgment.
[127]
The Speaker must be a member of the National Assembly, consequently
the conditions that attach to membership of
the Assembly must also
apply to the Speaker. These criteria for membership of this
institution are stipulated in s 47 of the Constitution
in the form of
a list of exclusions. The general position is that any citizen, who
is qualified to vote and retains membership
of his or her political
party, is eligible to be a member of the National Assembly, unless he
or she:
127.1  Is
appointed by, or is in the service of, the state and receives
remuneration for that appointment or service, but,
subject to any
legislation, excludes the President, Deputy President, Minister,
Deputy Ministers and any office-bearer, whose functions
have been
declared by National legislation to be compatible with
those of a Member of the
National Assembly.
127.2  Is a
permanent delegate of the NCOP, a member of a provincial legislature
or of a Municipal Council, unless provided
otherwise by legislation.
127.3  Is an
unrehabilitated insolvent.
127.4  Is
declared to be of unsound mind by a court of the Republic; or
127.5  Has been
convicted of an offence and sentenced to more than 12 months’
imprisonment without the option of a fine
either in the Republic or
elsewhere, if the conduct would have been an offence if committed in
the Republic, provided that this
ground of disqualification will not
apply after five years of having served the full sentence.
[128]
Notably, the Constitution does not prescribe that a person be ‘
fit
and proper’
in order to be a Member of the National
Assembly. A candidate for Speaker thus need do no more than be a
member of the National
Assembly, for which he or she must satisfy the
prerequisites listed in s 47(1) to hold that position. On this
textual approach,
s 52 of the Constitution plainly does not, either
expressly or by necessary implication, require that a candidate be
‘
fit and proper’
to be eligible to be elected by
the National Assembly as Speaker or, once elected, to remain as
Speaker. An examination of other
parts of the Constitution supports
this conclusion. This is especially so because where the Constitution
does require particular
persons to be ‘
fit and proper’
to hold certain public office, it says so in specific terms:
128.1
Section 174(1) requires that an appropriately qualified person must
in addition be fit and proper to be
appointed as a Judge.
128.2
Section 193(1) requires that the Public Protector and the members of
any Commission established in terms
of Chapter 9 of the Constitution
be fit and proper.
128.3
Section 193(3) requires that the Auditor-General, among other things,
be fit and proper.
128.4
Section 196(10)(b) requires that all commissioners of the Public

Service Commission be fit and proper.
[129]
In
Simelane
the
Constitutional Court noted that s 179(1) of the Constitution did not
expressly state that the National Director of Public Prosecutions
had
to be appropriately qualified but held that it was necessarily
implied that he had to be.
[90]
However, National legislation, namely, the
National Prosecuting
Authority Act 32 of 1998
did create as an objective jurisdictional
fact for the appointment of the National
Director
of Public Prosecutions (‘NDPP’) a requirement that he or
she be fit and proper. This was the basis for the
decision of the
Constitutional Court in
Simelane
.
The differentiating factor in the present case is that, unlike the
appointment of the NDPP, the election of the Speaker is not
governed
by an Act of Parliament, but by    s 52 and Part A of
Schedule 3 to the Constitution alone, and comprehensively
so.
Accordingly, the Constitution does not provide for legislation to
impose additional requirements in order to be eligible for
election
as Speaker, including the condition of fitness and propriety. In any
event, the position of the Speaker differs markedly
from that of the
incumbents who are required to be fit and proper to hold office. The
most glaring difference is that the incumbents
are appointed, while
the Speaker is elected.
[130]
The only possible sources from which such condition might arise,
apart from the Constitution and legislation,
would be the Rules and
orders of the National Assembly or the common law. However, neither
the Rules of the National Assembly,
\its orders nor the common law
can validly impose their own conditions that do not accord with an
exhaustive list of conditions
under the Constitution. That is a
function of the supremacy of the Constitution above all other law.
[131]
The applicants rely on pre-constitutional jurisprudence for the
proposition that English law is relevant and persuasive
authority for
the requirements attached to the Office of a Speaker. They also
relied on two South African authorities namely,
Kilian
and
Brummer
,
in support of their arguments that the Westminster model, through the
common law, is indeed relevant to the Office of the Speaker
in the
current dispensation.
Kilian
[91]
is not authority for the proposition that English common law
regarding the fitness of the Speaker of the House of Commons is part

of South African law. Similarly in
Brummer,
[92]
the Court did not definitively decide whether English common law
regarding the Speaker of the House of Commons formed part of South

African law, so as to apply to the Speaker of the National Assembly.
I agree with the notion though, that the Speaker is required
to
discharge her functions impartially, fairly and rationally as stated
in
Kilian
.
The description of the Speaker in
Brummer
as an “
impartial
moderator
”
under a duty to “
apply
standing orders fairly and equally at all times
”
is applicable law.
[132]
With regard to the application of common law in our democratic system
the Court stated the following in
Pharmaceutical
Manufacturers Association of South Africa and Another:
In
Re
Ex Parte President of the Republic of South Africa and Others
[93]
at
para [44] and [45]:
“
[44]
I cannot accept this contention, which treats the common law as a
body of law separate and distinct from the Constitution.
There are
not two systems of law, each dealing with the same subject-matter,
each having similar requirements, each operating in
its own field
with its own highest Court. There is only one system of law. It is
shaped by the Constitution which is the supreme
law, and all law,
including the common law, derives its force from the Constitution and
is subject to constitutional control.
[45]
... That is not to say that the principles of common law have ceased
to be material to the development of public law. These
well-
established principles will continue to inform the content of
administrative law and other aspects of public law, and will

contribute to their future development. But there has been a
fundamental change.  Courts no longer have to claim space and

push boundaries to find means of controlling public power. That
control is vested in them under the Constitution, which defines
the
role of the courts, their powers in relation to other arms of
government and the constraints subject to which public power
has to
be exercised. Whereas previously constitutional law formed part of
and was developed consistently with the common law, the
roles have
been reversed ... Even if the common law constitutional principles
continue to have application in matters not expressly
dealt with by
the Constitution (and that need not be decided in this case), the
Constitution is the supreme law and the common
law, insofar as it has
any application, must be developed consistently with it and subject
to constitutional control.”
[133]
The Supreme Court of Appeal has recently cautioned against the
uncritical reliance on legal doctrines from foreign
jurisdictions
that bear constitutionally dissimilar features as our own.
[94]
Although s 39(1) of the Constitution allows a court to consider
foreign law when interpreting the Constitution, the court stated
in
H
v Fetal Assessment Centre
[95]
that “
foreign
jurisprudence must be viewed through the prism of the Bill of Rights
and our constitutional values
”.
The court further stated at para 31(c) as follows:
“
31(c)
The similarities and differences between the constitutional
dispensation in other jurisdictions and our Constitution
must be
evaluated. Jurisprudence from countries not under a system of
constitutional supremacy and jurisdictions with very different

constitutions will not be as valuable as the jurisprudence of
countries founded on a system of constitutional supremacy and with
a
constitution similar to ours.”
[134]
The Speaker’s eligibility for office is derived from the
Constitution, and not the common law or foreign
law. Our
Constitutional system is uniquely South African and our Parliament is
subject to the Constitution, while in respect of
the classic
Westminster system, Parliament is supreme. The Constitutional Court
has remarked on the distinctiveness of our Constitutional
design as
compared to the Westminster model.
[96]
In any event, despite their misplaced emphasis on the English common
law, the applicants have not alleged that under the Westminster

system fitness and propriety are legal preconditions to becoming the
Speaker or remaining in office as a Speaker.
[135]
The Constitution is the ultimate source for all legal authority in
the Republic. Notably, the Constitution does
not prescribe that a
person be fit and proper in order to be a member of the National
Assembly. Had the Constitution sought to
impose further requirements
it would have done so explicitly. Any declaration to the effect that
the Speaker is not fit and proper
would automatically create a fixed
requirement for continuation of an incumbent holding the Office of
Speaker. The practical effect
of the relief sought in para 4.5 of the
Notice of Motion will be the removal of the Speaker from Office. The
Court cannot on its
own accord create and impose such a condition,
nor can the court usurp the functions of the National Assembly in the
removal of
the Speaker by the introduction of new requirements. The
Constitution provides for the Office of the Speaker, for the election
to Office of the Speaker, including eligibility for election, and for
removal of the Speaker. In conclusion, s 52 of the Constitution
does
not provide expressly or by necessary implication that a candidate
must be fit and proper to be eligible to be elected Speaker
by the
National Assembly, or, once elected to remain as Speaker.
Consequently, being a fit and proper person is not a constitutional

condition precedent to becoming, or holding office as, Speaker.
Absent such prerequisite in law, the question of the Speaker’s

fitness and propriety does not present a dispute capable of
resolution through the application of the law. It therefore follows

that the issue of the fitness and propriety of the Speaker is not
justiciable.
Neutral
Speaker vs Partisan Speaker
[136]
In his study
Presiding
Officers of National Parliamentary Assemblies:      A
World Comparative Study,
Georges Bergougnous described the “
typical
”
Speaker as a person “
with
long experience of parliamentary life, elected by the Assembly he
presides for Parliament’s term, with no possibility
of
dismissal, belonging to the majority but acting with impartiality,
respecting and ensuring respect for the rights of the opposition.
His
role primarily focuses on the chairing of public sittings, a task he
may temporarily hand over to a replacement, appointed
or elected for
this purpose. During the sitting, he maintains order and discipline,
ensures respect for the rules of procedure
by interpreting its
provisions if need be, gives the floor or withdraws the right to
speak, and initiates the voting procedure.
On the other hand, he
refrains from taking the floor during debates, gives up his right to
propose legislation and only votes in
exceptional circumstances’
[97]
Bergougnous
acknowledges that the above description should not obscure the
special features of each particular Parliament derived from its
own
traditions and Constitutional systems.
[98]
[137]
The Office of the Speaker worldwide generally comprises two models,
namely, the “
neutral
”
Speaker and the “
partisan
”
Speaker.
[99]
The Westminster
system of Government in England provides for the ‘
neutral
’
Speaker model. Although elected from the majority among members of
the House of Commons, the Speaker withdraws from politics
once
elected. The Speaker is expected to be a fully impartial official.
The Speaker, once elected, is always re-elected until he
or she
resigns or retires.
[100]
In
the House of Commons there is a practice that the Speaker will be
re-elected, regardless of a changing government, under what
is
sometimes referred to as the continuity principle.
[101]
A Westminster Speaker runs uncontested by major political parties,
allowing a Speaker not to be disadvantaged by the inability
to engage
in partisan politics.  The opposition therefore does not oppose
the serving Speaker at election time following a
convention that the
Speaker should not become involved in political debates and disputes.
According to the Westminster convention
there appears to be the
assumption that one cannot be a member of a political party and at
the same time be capable of impartiality
in the House. Horace King,
Speaker at Westminster from 1965 to 1971, eloquently stated it as
follows:
“
...
after a long period of evolution, the impartiality of the modern
Speaker has become almost mathematical – certainly beyond
doubt
or question.
And
this the British Parliament believes to be right – that, while
the House of Commons is a place where, rightly, the fiercest

controversy takes place, it shall take place within an ambit of
mutual respect for each other’s personal honour, for ordered

and regular procedure, and for the protection of all opinions, even
those of the smallest minority. And because this conception
lies at
the heart of parliamentary democracy, Parliament selects one of its
Members, divests him of his political past, and hands
over to him the
dignity and authority to preserve this fundamental idea.”
[102]
[138]
Not all the elements of the Westminster tradition of neutrality and
impartiality have been transposed to countries
modelled on the
Westminster parliamentary system. In Canada, Australia and the Indian
Lok Sabha the Speaker is not required to
resign from their political
party and needs to contest his/her seat at election time unlike the
British Speaker.
[103]
Consequently the principle of continuity which provides security of
tenure is not applicable to their Office. It is therefore evident

that the Westminster tradition of impartiality remains a cornerstone
of the Speakership in any
parliamentary
democracy, but there are crucial differences in the privileges and
status accorded to the Westminster Speaker.
[139]
The Speaker of the United States House of Representatives exemplifies
the ‘
partisan
model’
.
The incumbent there is also the elected Leader of the Majority Party
in the House of Representatives and is an openly partisan
political
officer. The Speaker’s role is not limited to Parliamentary
functions, but also represents a key political figure
who plays an
important part in the setting of the agenda of the majority
party.
[104]
The Speaker is
effectively both the Presiding Officer and the Chief Whip and has a
direct influence over the legislative process.
Notwithstanding this
the United States Speaker is required to act impartially in the
House. It is significant that both the British
and United States
parliamentary models find their origins in the Westminster tradition
but conceive the Office of the Speaker differently.
[105]
It suggests that the Office of the Speaker is not designed in the
abstract, but by the peculiarities of the historical and political

influences as well as the Constitutional system applicable.
[140]
Bergougnous
also stated that in many parliaments the Speaker is both an active
protagonist and an impartial arbitrator and a distinction has
to be
drawn between his activities as Speaker and as an ordinary
parliamentarian.
[106]
It is
not unusual for a Speaker to continue to be a member of a political
group and still belong to the majority and at the same
time act
impartially while in Office. In his seminal work, ‘
The
Office of Speaker in the Parliaments of the Commonwealth’
,
Philip
Laundy
[107]
expressed the view that the fact that the Speaker may have political
attachments is “
not
in itself important. What is important is that the Speaker be able to
distinguish between a party allegiance and duty to Parliament
.”
[141]
Although some of the features of the Westminster system have been
retained in our parliamentary system, it cannot
be accepted that
‘
Parliamentary law and practice’
of Westminster is applicable in South Africa in all respects. Our
parliamentary law and practice emanates from the Constitution,

ancillary legislation (including our electoral legislation) and Rules
and Orders of Parliament, which differ in material respects
from the
constitutional arrangements in countries that follow the “
Westminster
model
”. The differences include
the doctrine of parliamentary sovereignty, which is not compatible
with the supremacy of our Constitution
and ancillary legislation.
[142]
The South African electoral system is a close-list proportional
representation system. Given the electoral system
through which
members of the National Assembly are elected it is inevitable that
the Speaker must belong to one of the political
parties represented
in the National Assembly. The Rules do not prohibit a Speaker from
caucusing and canvassing for her party outside
the Assembly.  While
the position of Speaker of the National Assembly in South Africa is
not inherently partisan such as the
Speaker in the USA, election to
the position of Speaker here does not entail the incumbent Speaker
severing political-party ties.
Section 46 of the Constitution read
with the
Electoral Act 73 of 1998
, especially Schedule 1(A) thereof,
provides
in effect that the elections for the National Assembly are contested
by political parties and only persons on successful
parties’
lists of candidates may be designated as members of the National
Assembly. Furthermore, s 52(1) of the Constitution
provides that the
National Assembly must elect a Speaker from among its Members.
[143]
It follows that to be elected and to remain as Speaker of the
National Assembly, a person must be and remain a
member of a
political party represented in the National Assembly.  The South
African Parliamentary System allows for the Speaker
to hold office in
a political party represented in the National Assembly. Every Speaker
of the National Assembly since 27 April
1994 has been a member of the
ANC’s National Executive Council (“NEC”). The fact
that the Speaker is appointed
from a closed list system, that she is
a political appointee and can easily be removed from the National
Assembly by the party
could create fertile ground for a perception of
bias. It is unavoidable that there will at times be tension as
regards the Speaker’s
continued role as NEC Chair due to the
difficulties in keeping a balance between the dual and conflicting
roles.
[144]
To sum up, there is no constitutional or statutory impediment to the
Speaker occupying any leadership position
within her political party,
or participating in the activities of the political party. The
Speaker is entitled to remain as an
office bearer of a political
party, participate in its activities and campaign for political
rights. Affiliation to a political
party cannot in itself point to a
lack of objectivity and impartiality. The Speaker’s membership
of the NEC does not render
her incapable or biased in performing her
duties as Speaker. Similarly attending meetings of the ANC caucus
does not translate
into a failure to conduct duties impartially as
the Speaker.  Consequently there is no legal basis to find that
the Speaker
cannot continue to hold the position of Chairperson of
the National Executive Committee of the ANC as well as that of
Speaker.
The
removal or dismissal of the Speaker
[145]
The applicants contend that the demands of fairness and impartiality
attaching to the Office of the Speaker are
indispensable to the
principles of transparent, representative democracy and executive
accountability is central to our democratic
dispensation. The
applicants expressed the view that the country has been in the midst
of a constitutional crisis for almost a
year as a result of the
Speaker’s conduct. They contend that having regard to the
conspectus of facts, and how the Speaker
is conducting her
responsibilities it is clear that she is partisan and biased. The
applicants submit that the Court has to make
an objective
determination as to whether the Speaker should continue to hold
office. The court is called upon to assist
Parliament
to extricate itself from a constitutional crisis since the Speaker
cannot be ousted by ordinary procedures provided for
in the
Constitution.
[146]
The applicants submit that with regard to relevant events, decisions
and statements made by the Speaker, her conduct
cumulatively shows
that she has disqualified herself from holding office. The Speaker
has a legal obligation to conduct the affairs
of the National
Assembly impartially.  The applicants therefore contend that the
Speaker should be removed from office by
the Court.
[147]
The Speaker’s procedural role in the House involves many
aspects. No doubt the duties in the Chair are the
most challenging.
Procedural incidents are bound to arise and the Speaker has to use
all options available in the Rules of Procedure
to resolve them. The
Speaker has a delicate task of using her powers with circumspection
and must show moderation in order to protect
freedom of expression
whilst at the same time protecting the dignity of the House.
The Speaker must remain impartial within
the business of the National
Assembly as prescribed by the Rules of Parliament.
[148]
The Speaker had responded to all the allegations made against her
regarding her conduct in the National Assembly,
her failure to
distance herself from the ANC and public pronouncements made by her
which allegedly strengthened the perception
of her bias and
partisanship in the House. The Speaker disputed some of the
allegations by giving a comprehensive factual account
of her version
of the events. She also justified her conduct in the House with
specific reference to the relevant Rules of the
National Assembly
applied by her in specific incidents. Consequently, she justified her
conduct in the House by referring to her
interpretation of the Rules.
The Speaker also relied on certain provisions in the Constitution to
justify her conduct as a politician
outside the House. The Speaker
conceded that she had made disparaging remarks about Mr Malema of the
EFF on 14 February 2015, but
states that she publicly apologized
promptly on 18 February 2015. The apology was accepted by the EFF and
Mr Malema. The disparaging
remarks made by the Speaker outside the
House are unfortunate, but in my view it does not demonstrate
incompetence and bias in
the performance of her duties as Speaker.
According to
Bergougnous
a distinction must be drawn between conduct inside and outside the
House, [especially] where the partisan model operates.
[108]
In the latter instance the Speaker would understandably be more
robust in terms of political issues. As explained by former Speaker

Frene Ginwala:
[109]
“
The
critical factor in considering the conduct of any Speaker ... is not
a perceived conflict between parliamentary responsibility
and party
loyalty, but gauging specific actions in the context of the
responsibility placed on the office-bearer by the Constitution
and
the Rules.”
[149]
On the Speaker’s version, there is no factual basis on which to
find that she did not act impartially, fairly,
equitably and without
bias. The members of Parliament or the Court may not agree with the
Speaker’s justification for her
conduct but in the absence of
any review challenge of any specific ruling or decision made by the
Speaker there is a high threshold
to negotiate to convince the Court
that the Speaker is not impartial within the Business of the National
Assembly. The Speaker
must be given the greatest latitude by virtue
of her role in Parliament. With regard to the complaints relating to
alleged bias
exhibited during debates in Parliament, it was stated in
Lekota
and Another v Speaker, National Assembly and Another
[110]
:
“
[T]he
task of controlling debates in Parliament requires particular skills
and is best dealt with by the presiding officers who
are appointed
for this purpose ... A court should be loathe to encroach on their
territory and only do so on the strength of compelling
evidence of a
constitutional transgression.”
[150]
In Canada, a country with a supreme Constitution and a separation of
powers between the legislature, the executive
and the courts, the
Supreme Court of Canada
in
Canada
(House of Commons) v Vaid
[111]
emphasized the right of the Speaker of the Canadian Parliament to
perform his or her functions without external interference:
“
It
is a wise principle that the courts and Parliament strive to respect
each other’s role in the conduct of public affairs.
... The
courts, for their part, are careful not to interfere with the
workings of Parliament ... It would be intolerable, for example,
if a
member of the House of Commons who was overlooked by the Speaker at
question period could invoke the investigatory powers
of the Canadian
Human Rights Commission with a complaint that the Speaker’s
choice of another member of the House discriminated
on some ground
prohibited by the Canadian Human   Rights Act,   or to seek
a ruling from the ordinary courts that the
Speaker’s choice
violated the member’s guarantee of free speech under the
Charter. These are truly matters ‘internal
to the House’
to be resolved by its own procedures.”
[151]
Section 52(4) of the Constitution provides for the removal of the
Speaker from office in the following terms:
“
The
National Assembly may remove the Speaker or Deputy Speaker from
office by resolution. A majority of the members of the Assembly
must
be present when the resolution is adopted.”
[152]
The Constitution expressly states that the National Assembly is the
competent authority to remove the Speaker.
The manner in which
it may do so is by passing a resolution.  Nowhere else in the
Constitution is the power to remove the
Speaker mentioned or
conferred upon any other person or institution. For that reason, it
is impermissible for any other person
or institution to assume that
function. No other process is authorised. It is, therefore,
impermissible for the National Assembly
to remove the Speaker in any
other manner, including by assigning that function to any other
person or institution by legislation
or otherwise. Equally, it is
impermissible for any other person or institution to assume that
function. The Speaker’s authority
is derived from the House, to
whom her duty lies and to which she is answerable. Just as the
Speaker is elected by the House, she
may be removed from office by a
vote of the House.
[153]
The exercise by the National Assembly of the power in s 52(4) of the
Constitution, as with all exercises of public
power, is subject to
the dictates of the Constitution and subject to review of the Courts
as the final authority. However, if properly
seized with a review, a
court will be confined to reviewable grounds in adjudicating the
case. These will likely include determining
whether the exercise of
the power by the National Assembly in the manner prescribed was done
in accordance with law, and any order
granted will be appropriately
calibrated in the light of the separation of powers doctrine.
[154]
The National Assembly, over which the Speaker presides, is part of
the legislative arm of State. Section 42(3)
of the Constitution
states that the National Assembly is elected to represent the people
and ensure government by the people in
a representative democracy.
The functions of the National Assembly may not be intruded upon by
another branch of government, unless
specifically sanctioned by the
Constitution. It is therefore inappropriate for the Speaker to be
removed by the Courts, in which
the Constitution has vested judicial
authority.  In
Mazibuko
NO v Sisulu and Others NNO
[112]
Davis J expressed a word of caution:
“
There
is a danger in South Africa, however, of the politicisation of the
judiciary, drawing the judiciary into every political dispute
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. ... An overreach of the powers of
judges – their intrusion into issues which are

beyond their competence or intended jurisdiction – which have
been deliberately and carefully constructed legally so as
to ensure
that the other arms of the state deal with these matters, can only
result in jeopardy for our constitutional democracy.”
[155]
Dlodlo J, in
Primedia
Broadcasting Ltd and Others v Speaker of the National Assembly and
Others,
[113]
warned that ‘
courts
should guard against  conduct which amounts to what can be
described as an intrusion into the constitutional domain
of
Parliament, which is not only unprecedented but which has obvious
major constitutional implications’.
In
confronting the question whether the court may venture into the
domain of other branches of government, the courts must observe
the
limits of their own power.
[114]
As pointed out by the Constitutional Court in
Doctors
for Life
,
“C
ourts
must be conscious of the vital limits on judicial authority”
[
and]
“
should
not interfere in the processes of other branches of government unless
to do so is mandated by the Constitution.”
[115]
[156]
The Courts are not constitutionally mandated to remove the Speaker
from Office. The removal of the Speaker on
grounds other than those
legal bases that would disqualify her to be a member of the National
Assembly, is a political act. Judicial
independence would be
adversely affected should the courts become embroiled in what is
quintessentially a political act, save for
those limited instances
where legality calls on them to do so. The Speaker is the Chairperson
of the National Assembly and if conflicted
whilst presiding, it is
incumbent on her to recuse herself. In that event, the applicable
rules will come into force. Any order
granted in terms of prayers
4.5, 4.6 and 4.7 would offend against the doctrine of separation of
powers which entails that the National
Assembly, and not the Courts,
must determine a person’s suitability for election as Speaker
and a person’s suitability
to remain in Office as Speaker.
[157]
The unique position of the Speaker of Parliament was eloquently
summarized by
Bergougnous
[116]
as follows:
“
Irrespective
of the political regime or the geographical situation of the country
concerned, the political party system, the rules
of procedure or the
traditions of the Parliament, in short, whatever the actual role and
status of the Assembly within the institutional
structure, it retains
control over the Speaker’s appointment ...
Moreover,
where a Speaker is elected by the Assembly he presides, he is elected
by the house as a whole. He is elected directly,
thereby reinforcing
his legitimacy...
Quite
a few countries have established a system that involves a motion of
[no] confidence in the Speaker and his possible dismissal.
In almost
all cases, the House itself is responsible for the procedure.”
Non
– Joinder
[158]
The second respondent argued that insofar as the relief sought in
prayers 4.6 and 4.8 are concerned, there has
been a material
non-joinder of a necessary party with a direct and substantive legal
interest in the relief, namely the ANC. It
was submitted that the
relief pertaining to the declaratory that the Speaker is not entitled
to hold office as the Chairperson
of the National Executive Council
of the ANC whilst at the same time holding the Office of the Speaker
of the National Assembly
necessitated the joining of the ANC.
Furthermore, it was submitted that there is also a material
non-joinder of the ANC insofar
as the relief is sought with respect
to a secret ballot. In
Rosebank
Mall v Cradock Heights
[117]
the following was stated:
“
It
is important to distinguish between necessary joinder (where the
failure to join a party amounts to a non-joinder), on the one
hand,
and joinder as a matter of convenience (where the joinder of a party
is permissible and would not give rise to a misjoinder),
on the other
hand. In cases of joinder of necessity the Court may, even on appeal,
mero
motu
raise the question of joinder to safeguard the interests of third
parties, and decline to hear the matter until such joinder has
been
effected or the court is satisfied that third parties have consented
to be bound by the judgment of the court or had waived
their right to
be joined.”
[159]
It is well established that the test whether there has been
non-joinder is whether a party has a direct and substantial
interest
in the subject matter of the litigation, that is, a legal interest in
the subject matter which may be prejudicially affected
by the
judgment or the order.
[118]
[160]
In
Burger
v Rand Water Board and Another
[119]
the
Supreme Court of Appeal, per Brand JA, summarized the principles
applicable to joinder as follows:
“
The
right to demand joinder is limited to specified categories of parties
such as joint owners, joint contractors and partners,
and where the
other party(ies) has (have) a direct and substantial interest in the
issues involved and the order which the Court
might make.”
[161]
In
The
Judicial Service Commission and Another v The Cape Bar Council
and
Another
[120]
Brand JA dealt with the question of non-joinder in the following
terms:
“
It
has now become settled law that the joinder of a party is only
required as a matter of necessity – as opposed to a matter
of
convenience – if that party has a direct and substantial
interest which may be affected prejudicially by the judgment
of the
court in the proceedings concerned (see e.g.
Bowring
NO v Vrededorp Properties CC and Another
2007 (5) SA 391
(SCA) par
21
).  The mere fact that a
party may have an interest in the outcome of the litigation does not
warrant a non-joinder plea.  The
right of a party to validly
raise the objection that other parties should have been joined to the
proceedings, has thus been held
to be a limited one.”
[162]
It is difficult to see what “
direct
and substantial interest
”
of the ANC would be prejudicially affected were the Court to grant
the relief sought. The ANC and other political parties
may have a
political interest in the outcome, but that is not a cognisable legal
interest for the purposes of necessary joinder.
At best for second
respondent, the joinder of the ANC and other political parties
represented in the National Assembly may be competent
under Rule 10
on the grounds of convenience or equity. Moreover, where a party
raises the issue of non-joinder, the standing of
a respondent to
demand joinder is limited.
[121]
This is especially the case where an applicant has not sought relief
against the party the respondent demands to be joined.
[122]
[163]
It must be borne in mind that under the Powers, Privileges and
Immunities of Parliament and Provincial Legislatures
Act, No 4 of
2004, the Speaker acts as the legal representative of Parliament in
civil proceedings.
[123]
It
is not disputed that the ANC was informed of the application and all
indications are that they have waived any entitlement to
be part of
these proceedings. In any event, I am satisfied that no cognisable
legal interest was established and no prejudice will
be suffered by
the ANC as a result of the order or judgment of this Court. In the
result I find no substance in this point
in
limine
and it is accordingly dismissed.
Striking
out application
[164]
On 31 July 2015 the Speaker served a voluminous application to strike
out the entirety of applicants’ replying
affidavit on the basis
that it is inadmissible hearsay and contained irrelevant matter. She
subsequently abandoned the application
on condition that applicants
consent to the filing of her new supplementary answering affidavit.
Applicants have agreed not to
oppose the supplementary answering
affidavit.
[165]
What effectively remains of the application to strike out is the
Speaker’s challenge to those parts of applicants’

affidavits alleged to be hearsay. The relevant hearsay allegations
are contained in a limited number of paragraphs in the founding
papers
and replying papers. Most of the material sought to be struck out
consists of media reports and various allegations considered
by first
respondent to be irrelevant, speculative and unsubstantiated. In the
supplementary answering affidavit the Speaker dealt
with all
putatively hearsay evidence objected to. Only four paragraphs related
to hearsay averments made in replying papers. The
Speaker therefore
had ample opportunity to digest the evidence and aptly dealt with all
the allegations.
[124]
In my
view this is a typical case where the hearsay evidence forms part of
the background narrative of the case offering helpful
context as
explained by Van Heerden J in
Parow
Municipality v Joyce & McGregor (Pty) Ltd
[125]
at
page 939:
“
[I]nvariably,
for the sake of presenting a complete picture to the court there are
instances where hearsay evidence is tolerated.
This is especially so
when matters which have become public knowledge are referred to and
the material issues are not affected
by its inclusion.”
[166]
The majority of the issues raised by the Speaker as hearsay were
widely reported. She also referred to a YouTube
clip and media
clippings in the replying papers. I am satisfied that the Speaker was
given adequate opportunity to respond to
all
the allegations and will suffer no prejudice if the allegedly hearsay
material is not struck out. I am in agreement with the
pragmatic
approach adopted in
Gold
Fields Ltd and Others v Motley Rice LLC
[126]
which is applicable in
this particular case, where the Court noted the need to “
place
substance over form
”
and held as follows:
“
Although
this court has read whatever was placed before it in evidence, the
weight to be placed on what is in the affidavits depends
on relevance
and admissibility. ... The respondent has therefore not been
prejudiced in this court’s consideration of the
case, and
furthermore not much time was taken in argument dealing with the
striking-out application”.
Concluding
Remarks
[167]
Agang gave a speech in the House with regard to the proceedings of a
vote of no confidence in the Speaker on 16
September 2014. It
condemned the motion of no confidence in the Speaker claiming that
opposition parties supporting the motion
resorted to meaningless acts
of disruptive politics. It
inter alia
stated the following:
“
Agang
is not interested in settling personal vendettas of individual
politicians at the expense of mature and responsible political

engagement. Parties in Parliament should focus on the interest of the
masses, not on petty politics. We should therefore ensure
that the
integrity of our constitutional institutions is protected through
meaningful engagement.
Lastly,
I would like to say that the Speaker of Parliament is not the
Presiding Officer now, but we have disorder. I want to emphasise
that
it is very clear that to be a Presiding Officer in this Fifth
Parliament is a very dangerous job. Even if you remove the Speaker
of
Parliament, whoever is going to replace her, is going to be a victim.
The induction that we had in the beginning of our term
was not enough
for MPs. I propose that in future, when we do induction,
we
must also invite psychiatrists.”
[127]
[168]
The above statement made by Agang is a clear indication of the
challenges facing the Speaker who presides over
the Fifth Parliament.
The Speaker is an experienced politician who had served as Deputy
Speaker and Speaker cumulatively for a
period of fifteen years. The
Speaker was also the Deputy-President of the Republic from 2008 to
2009. An incumbent in this position,
usually an experienced
politician, is always mindful of Constitutional duties and the
commitment to act impartially, equitably
and without bias. It is
remarkable that the allegations regarding the Speaker’s conduct
in the House manifested themselves
only over a year ago. A reading of
Hansard extracts provided by the parties clearly shows a history of
conduct on the part of members
of Parliament which is indicative of
disobedience and defiance of the Chair, concerted irregular
interjections, a refusal to accept
rulings made by the Speaker, and
disruptions of parliamentary sittings. The applicants stated that the
turmoil in the National
Assembly is attributable in part to ‘
shifting
political winds’
.
It is inconceivable how the Speaker is attributed blame for ‘
chaos
’
in the National Assembly. The Speaker is obliged to conduct
proceedings within confined boundaries set by Parliamentary
rules and
procedures. Consequently the Speaker cannot act on a whim and perform
her functions in a manner that impinges on the
dignity of the House
and constitutionally protected rights of its members. The
impartiality of the Speaker is entrenched in the
Speaker’s
obligation to make rulings on the basis of established conventions,
practices and Rules of Parliament.
[169]
No doubt, Parliament is a vibrant and robust environment where
debates are intense and sometimes contentious.
The Constitutional
Court so eloquently described it as follows in
Democratic
Alliance v African National Congress and Another
[128]
at para 133:
“
Political
life in democratic South Africa has seldom been polite, orderly and
restrained. It has always been loud, rowdy and fractious.
That is not
a bad thing. Within the boundaries the Constitution sets, it is good
for democracy, good for social life and good
for individuals to
permit as much open and vigorous discussion of public affairs as
possible.”
[170]
In response to applicants’ submission that the proceedings in
the National Assembly have descended into
‘
utter chaos’
and, as a result, there now exists a  constitutional crisis that
justifies extraordinary intervention by the Court,  the
Speaker
advised the Court of new NA Rule 53A recommended by the National
Assembly. The National Assembly Rules Committee recently
considered
the introduction of new measures to control disruptions in the House.
The new NA Rule 53A governing the removal of a
member from the
Chamber provides that the removal may be effected on the instruction
of the Presiding Officer by the Sergeant-at-Arms,
the Parliamentary
Protection
Services, or, in extraordinary circumstances, the security services.
The National Assembly considered the amendment and
a resolution was
passed on 30 July 2015 by an overwhelming majority of members of the
National Assembly to approve the recommendations.
The
recommendations were supported by the Third Applicant (Mr Lekota) on
behalf of the Fourth Applicant (Congress of the People),
and members
of the Sixth Applicant (United Democratic Movement). The Rules of
Parliament were therefore amended to deal with challenging
issues in
the House and I am satisfied that there is no constitutional crisis.
[171]
Although the applicants questioned some of the Speaker’s
rulings, they made it clear that they were not
seeking judicial
review in respect of any decision, statement or ruling made by the
Speaker. By implication there is no argument
that the Speaker has
exercised her functions arbitrarily or made incorrect rulings or
decisions. The complaints appear to be political.
Understandably the
Speaker’s ability to make decisions based on procedural merits
would at times be challenged and not all
members will always be
satisfied with a ruling made by the Speaker.  However, rules
which govern debating procedure, including
the expected courtesies
and decorum, must be observed, and the authority of the Speaker must
be respected by all members. An important
feature of the Speakership
is that elected members choose one of their own from amongst
themselves a member to preside impartially
over the House. All the
members of the National Assembly are responsible to uphold the
dignity and authority of the House as a
whole.  In an excerpt
from Franҫois Côté’s paper on “
The
Impartiality
of the Chair
”
[129]
the following profound statement was made:
“
It
is nonetheless true, however, that the Chair is not infallible.
Whatever errors may occasionally be committed, it is of the utmost

importance for the integrity of the institution that the Chair
continues to be treated with deference and that its impartiality
is
not called into question at every turn. As our Speaker said in his
ruling on June 12, 2001 “such are the rules of the

parliamentary game that we must all acknowledge that it is the
Speaker who is to have the final word; otherwise nothing is
possible.”
Costs
[172]
The respondents submit that the applicants’ conduct in relation
to this application has been unreasonable.
Not only have they applied
for a wide range of unmeritorious relief and, after receipt of the
Speaker’s answering papers,
persisted in seeking it, but they
also delivered inordinately lengthy replying papers. It was therefore
contended that, if unsuccessful,
the applicants should be ordered to
pay the costs of the Speaker and the President.
[173]
In considering the general approach to costs awards, the
Constitutional Court in
Ferreira
v Levin NO and Others
[130]
referred
to numerous factors which were influential in the consideration by
the Court as to whether or not to deprive a successful
litigant of
their costs. The Court stated at para (3) that:
“
...
[T]he principles which have developed in relation to the award of
costs are by their nature sufficiently flexible and adaptable
to meet
new needs which may arise in regard to constitutional litigation.
They offer a useful point of departure. If the need arises
the rules
may have to be substantially adapted; this should however be done on
a case by case basis. It is unnecessary, if not
impossible, at this
stage to attempt to formulate comprehensive rules regarding costs in
constitutional litigation”.
[174]
In
Affordable
Medicines Trust v Minister of Health
[131]
the
Constitutional Court stated that as a general rule ‘
in
constitutional litigation ... an unsuccessful litigant ought not to
be ordered to pay the costs’
.
The court stated further that:
“
The
rationale for this rule is that an award of costs might have a
chilling effect on the litigants who might wish to vindicate
their
constitutional rights. But this is    not an inflexible
rule. There may be circumstances that justify departure
from this
rule such as where the litigation is frivolous and vexatious ... The
ultimate goal is to do what is just having regard
to the facts and
circumstances of the case”.
[175]
In
Biowatch
Trust v The Registrar, Genetic Resources
[132]
the
Constitutional Court affirmed this approach to costs in
constitutional litigation as follows:
“
In
litigation between the government and a private party seeking to
assert a constitutional right,
Affordable
Medicines
established the
principle that ordinarily, if the government loses, it should pay the
costs of the other side, and if the government
wins, each party
should bear its own costs.”
[176]
The Constitutional Court has given three reasons for adopting the
general approach to constitutional matters.
First, this approach
reduces the so-called ‘
chilling
effect’
that an adverse costs
order might have on parties contemplating asserting constitutional
rights. Second, constitutional litigation,
whatever the outcome,
often bears not only on the interests of the litigants before court,
but also on the rights of others in
similar situations. Third, the
State bears the primary responsibility for ensuring that law and
State conduct are consistent with
the Constitution.
[177]
Most of the applicants are small political parties with limited
financial resources, while the remaining applicants
are individuals.
The issues raised in this matter are of great constitutional import
and “
indeed
adds texture to what it means to be living in a constitutional
democracy”.
[133]
Considering
all the circumstances of this matter, I am satisfied that the
appropriate order should be that each party pay his/her
or its own
costs.
[178]
In the result the following order is made:
(a)
The application is dismissed.
(b)
Each of the parties in these proceedings shall pay his/her or its own
costs.
GOLIATH,
J
Judge
of the High Court
I
agree.
HENNEY,
J
Judge
of the High Court
I
agree.
MANTAME,
J
Judge
of the High Court
[1]
Mazibuko
NO v Sisulu and Others
2013 (6) SA 249
(CC);
2013 (11) BCLR 1297
(CC) hereinafter referred to
as
“Mazibuko”.
[2]
Section
19 (3) (a) of the Constitution of the Republic of South Africa, Act
No. 108 of 1996 provides that “Every adult citizen
has the
right to vote in elections for any legislative body established in
terms of the Constitution, and to do so in secret.”
[3]
Sections
57(1)(b) and 59(1)(b) of the Constitution of the Republic of South
Africa.
[4]
Erskine
May,  Parliamentary Practice (2004) 24 ed p.6
[5]
Brummer,
NO v Mvimbi and Others 13535/2011 [2011]  ZAWCHC 385 at para
48.
[6]
Gauteng
Provincial Legislature v Kilian and Others
2001 (2) SA 68
(SCA) at
79 D.
[7]
G
Bergougnous; ‘Presiding officers of National Parliamentary
Assemblies: A World Comparative Study’ (1997)
(Inter-Parliamentary Union, Geneva) at 97, 99.
[8]
Pharmaceutical
Manufacturers Association of South Africa and Another: In Re Ex
Parte President of the   Republic of
South Africa and
Another
[2000] ZACC 1
;
2000 (2) SA 674
(CC);
2000 (3) BCLR 241
(CC) at para 45.
[9]
Brummer,
NO v Mvimbi and Others above n5 para 50, 52.
[10]
Gauteng
Provincial Legislature v Kilian and Others above n6.
[11]
The Constitution of the Republic of South Africa, Act
108 of 1996: Chapter 1 (the founding values).
[12]
Sebastian Seedorf & Sanele Sibanda “
Separation
of Powers” in Woolman et al (eds) Constitutional Law of South
Africa, revision service 6: April 2014, Vol 1,
Chapter 12, p.12-1.
[13]
Id at p
.12-2.
[14]
O’
Reagan K, “Checks and Balances: Reflections on the Development
of the doctrine of separation of powers
under
the South African Constitution” PER 2005 (8) 1 at 125/150.
[15]
Ex
Parte
Chairperson of the Constitutional Assembly: In re: Certification of
the Constitution of the Republic of
South
Africa,
1996 (4) SA 744
(CC); 1996(10) BCLR 1253 (CC) para 108 –
109.
[16]
Charles de Secondat, Baron de Montesquieu,
The
Spirit of the Laws 1748.
[17]
Pius Langa, “The separation of powers in the
South African Constitution”
(2006) 22 SAJHR 2
at 4.
[18]
International
Trade Administration Commission v SCAW South Africa (Pty) Ltd
2012
(4) SA 618
(CC);
2010 (5) BCLR 457
(CC) at para  91.
[19]
National
Treasury and Others v Opposition to Urban Tolling Alliance and
Others
2012 (6) SA 223
(CC);
2012 (11) BCLR 1148
at para 44.
[20]
Speaker
of the National Assembly v De Lille and Another
1999 (4) SA 863
(SCA) at para 14.
[21]
South
African Association of Personal Injury Lawyers v Heath and Others
2001 (1) SA 883 (CC);  2001 (1) BCLR 77 (CC).
[22]
Section
165 (4) of the Constitution.  Also see 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 para 38.
[23]
Minister
of Health and Others v Treatment Action Campaign and Others (No 2)
[2002] ZACC 15
;
2002 (5) SA 721(CC)
;
2002
(10) BCLR 1033
(CC) at para 99.
[24]
Van
Rooyen and Others v The State and Others (General Council of the Bar
of South Africa Intervening)
2002 (5) SA 246
(CC); 20
02 (8) BCLR 810
(CC) at para 48.
[25]
Doctors
for Life International v Speaker of the National Assembly and Others
2006 (12) BCLR 1399 (CC); 2006 (6) SA 416 (CC).
[26]
Pharmaceutical
Manufacturers Association of South Africa and Another: In Re Ex
Parte President of the Republic of South Africa
and Others
[2000] ZACC 1
;
2000 (2)
SA 674
(CC);
2000 (3) BCLR 241
(CC).
[27]
Carmichele
v Minister of Safety and Security and Another  (Centre for
Applied Legal Studies Intervening) 2001 (4) SA 938
(CC); 2001 (10)
BCLR 995 (CC).
[28]
Sebastian
Seedorf
and Sanele Sibanda above n12 at p.12 -51.
[29]
Glenister
v President of the Republic of South Africa and Others
2009 (1) SA 287 (CC); 2009 (2) BCLR 136 (CC).
[30]
Pharmaceutical
Manufacturers Association of South Africa and Another: In Re Ex
Parte President of the  Republic of South
Africa and Another
[2000] ZACC 1
;
2000 (2) SA 674
(CC);
2000 (3) BCLR 241
(CC) at para 19-20;
Doctors
for Life International v Speaker of the National Assembly and Others
above n25 at para 38.
[31]
Fedsure
Life Assurance Ltd and Others v Greater Johannesburg Transitional
Metropolitan Council and Others
[1998] ZACC 17
;
1999
(1) SA 374
(CC);
1998 (12) BCLR 1458
(CC) at para 58.
[32]
Pharmaceutical
Manufacturers Association of SA: In re Ex parte President of the
Republic of South Africa n30
para
85;  Also see: Democratic Alliance v Ethekwini Municipality
2012 (2) SA 151
(SCA) at para 21.
[33]
Affordable
Medicines Trust and Others v Minister of Health and Others
[2005] ZACC 3
;
2006 (3)
SA 247
(CC); 2005 (6) BCLR
529
(CC).
[34]
Democratic
Alliance v President of the Republic of South Africa and Others 2013
(1) SA 248 (CC); 2012 (12) BCLR 1297 (CC).
[35]
See also:
Oriani-Ambrosini
v Sisulu, The Speaker of the National Assembly
2012 (6) SA 588
(CC);
2013 (1) BCLR 14
(CC) at paras 60- 65; Doctors for Life
International v Speaker of the National Assembly and Others
above n25 at para 123.
[36]
Executive Council, Western Cape v Minister for
Provincial Affairs and Constitutional Development and Another;

Executive Council, Kwazulu Natal v President of the Republic of
South Africa and Others
[1999] ZACC 13
;
2000 (1) SA 661
(CC);
1999 (12) BCLR 1360
(CC) at para 100.
[37]
Oriani-Ambrosini
v Sisulu, The Speaker of the National Assembly above  n35.
[38]
De Lille and Another v
Speaker
of the National Assembly
1998 (3) SA 430
(C) at para 25.
[39]
The Constitution of the Republic of South Africa, Act
No. 108 of 1996. See also the Rules of the National Assembly,
8
th
ed, February 2014.
[40]
Gauteng
Provincial Legislature v Kilian
above n6 para 30.
[41]
Lekota
and Another v Speaker, National Assembly and Another
2015 (4) SA 133
(WCC) at para 11.
[42]
Mazibuko above n1 at para 28 and 48.
[43]
Mazibuko above n1 at para 50.
[44]
Mazibuko above n1 at para 51.
[45]
Mazibuko above n1 at para 57.
[46]
Mazibuko above n1 at para 61 and 82.4.
[47]
Mazibuko n1 at para 43.
[48]
Mazibuko n1 at para 43.
[49]
Mazibuko
n1 at para 58.
[50]
Mazibuko n1 at para 41.
[51]
Mazibuko n1 at para 41.
[52]
Mazibuko n1 at para 41
[53]
Mazibuko
above n1 at para 65
[54]
Maqoma
v Sebe NO and Another
1987 (1) SA 483
(Ck) at 491 E.
[55]
Hayes
and Another v Minister of Housing, Planning and Administration,
Western Cape, and Others
1999 (4) SA 1229
(C) at 1242 H.
[56]
Maqoma
above n54 as summarized in S v Smit
2008 (1) SA 135
(T) at 152.
[57]
Hayes
above n55 at 1242 J to 1243 A.
[58]
Mazibuko
above n1 at para 4.7
[59]
Oriani-Ambrosini
v Sisulu, The Speaker of the National Assembly above n35.
[60]
Democratic
Alliance and Another v Masondo NO and Another
[2002] ZACC 28
;
2003 (2) SA 413
(CC);
2003 (2) BCLR 128
(CC) at p.140I-141 B para 43.
[61]
Mazibuko
above n1 at para 62.
[62]
Affordable
Medicines Trust and Others v Minister of Health and Others above n33
at para 108.
[63]
Mazibuko above n1 at para 66.
[64]
Mazibuko above n1 at para 43.
[65]
Mazibuko above n1 at para 47.
[66]
Mazibuko above n1 at para 66.
[67]
Mazibuko
above n1 at para 66.
[68]
JT Publishing (Pty) Ltd and Another v Minister of
Safety and Security and Others
[1996] ZACC 23
;
1997 (3) SA 514
(CC);
1996 (12) BCLR
1599
(CC) at para 15; Van Wyk v Unitas Hospital and Another (Open
Democratic Advice Centre as Amicus Curiae)
[2007] ZACC 24
;
2008 (2) SA 472
(CC);
2008 (4) BCLR 442
(CC) at para 29. See also: Sebola and Another v
Standard Bank of South Africa Ltd and Another
2012 (5) SA 142
(CC);
2012 (8) BCLR 785
(CC) at para 32.
[69]
Geldenhuys
and Neethling v Beuthin
1918 AD 426
at 441.
[70]
National
Coalition for Gay and Lesbian Equality and Others v Minister of Home
Affairs and Others
[1999] ZACC 17
;
2000 (2) SA 1
(CC);
2000 (1) BCLR 39
(CC) at para
21, footnote 18.
[71]
Legal
Aid South Africa v Magidiwana and Others
2015 (2) SA 568
(SCA).
[72]
Qoboshiyane
NO and Others v Avusa Publishing Eastern Cape (Pty) Ltd and Others
2013 (3) SA 315
(SCA) at para 5.
[73]
Diamond
S “Federal jurisdiction to decide moot cases” 1946 U Pa
L Rev 125-147.
[74]
C Hoexter ‘The future of Judicial Review in South
African Administrative Law’
(2000) 117
SALJ
484
at 501-2.
[75]
Minister
of Environmental Affairs and Tourism and Others v Phambili Fisheries
(Pty) Ltd; Minister of Environmental Affairs and
Tourism and Others
v Bato Star Fishing (Pty) Ltd
2003 (6) SA 407
(SCA) at para 50.
[76]
Bato
Star Fishing (Pty) Ltd v Minister of Environmental Affairs and
Others 2004 (4) SA 490 (CC); 2004 (7) BCLR 687 (CC).
[77]
National
Coalition for Gay and Lesbian Equality and Others v Minister of Home
Affairs and Others above n70    at
para 66.
[78]
International
Trade Administration Commission v SCAW South Africa (Pty) Ltd
2012
(4) SA 618
(CC);
2010 (5) BCLR 457
(CC).
[79]
Bel
Porto School Governing Body and Others v Premier, Western Cape and
Another
[2002] ZACC 2
;
2002 (3) SA 265
(CC);
2002 (9) BCLR 891
(CC) at para 45 at
282 F-G.
[80]
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A) at
634 H – 635 C.
[81]
G
Bergougnous; ‘Presiding Officers of National Parliamentary
Assemblies: A World Comparative Study’ (1997)
(Inter-Parliamentary
Union, Geneva) at p.78
[82]
Section 52 3) and Section 86 (2).
[83]
United
Democratic Movement v President of the Republic of South Africa and
Others (African Christian Democratic Party and Others
Intervening;
Institute for Democracy in South Africa and Another as Amici Curiae)
(No 2)
[2002] ZACC 21
;
2003 (1) SA 495
(CC);
2002 (11) BCLR 1179
(CC) at para 56.
[84]
Glenister v President of the Republic of South Africa
and Others above n29.
[85]
Ferreira
v Levin NO and Others; Vryenhoek and Others v Powell NO and Others
1996 (1) SA 984
(CC); 1996 (1)  BCLR 1 at para 180.
[86]
Ferreira
v Levin NO and Others; Vryenhoek and Others v Powell NO and Others
above n85 at para 183.
[87]
Philip Laundy, The Office of Speaker in the Parliaments
of the Commonwealth, (London: Quiller Press, 1984), pp.
12-13. Also
see: House of Commons Procedure and Practice Second Edition, 2009
Edited by A. O’Brien and M. Bosc.
[88]
Helen
Suzman Foundation v President of the Republic of South Africa and
Others 2015 (2) SA (1) (CC); 2015 (1) BCLR 1 (CC).
[89]
Democratic
Alliance v President of the Republic of South Africa and Others
2013(1) SA 248 (CC);
2012 (12) BCLR 1297
(CC) at para 20-26.
[90]
Democratic
Alliance v President of the Republic of South Africa and Others
above n89 at para 13.
[91]
Gauteng
Provincial Legislature v Kilian and Others above n6.
[92]
Brummer,
NO v Mvimbi and Others above n5. at para 50, 52.
[93]
Pharmaceutical
Manufacturers Association of South Africa and Another: In Re Ex
Parte President of the Republic of South Africa
and Another
[2000] ZACC 1
;
2000 (2)
SA 674
(CC);
2000 (3) BCLR 241
(CC) at para 44-45.
[94]
City
of Cape Town v South African National Roads Authority Limited and
Others
2015 (3) SA 386
(SCA) at para 31.
[95]
H
v Fetal Assessment Centre
2015 (2) SA 193
(CC);
2015 (2) BCLR 127
(CC) at para 31.
[96]
Mansingh
v General Council of the Bar and Others 2014 (2) SA 26 (CC); 2014
(1) BCLR 85 (CC).
[97]
G
Bergougnous; ‘Presiding Officers of National Parliamentary
Assemblies: A World Comparative Study’ above n7 at 115-116.
[98]
Id at p.116.
[99]
Stanley
Bach, The Office of the Speaker in a Comparative Perspective (1999)
5, The Journal of Legislative Studies 209–254.
[100]
G
Bergougnous; ‘Presiding officers of National Parliamentary
Assemblies: A World Comparative Study’ (1997)

(Inter-Parliamentary Union, Geneva) at p.13.
[101]
Philip Laundy, The Office of Speaker in the Parliaments of the
Commonwealth, (London: Quiller Press, 1984) pp 68-71
[102]
Horace
King, “The impartiality of the Speaker, “
The
Parliamentarian
,
Vol. 47 (1966), p.131.
[103]
G
Bergougnous; ‘Presiding Officers of National Parliamentary
Assemblies: A World Comparative Study’ above n100 at
p.12, 97,
98.
[104]
G
Bergougnous; ‘Presiding Officers of National Parliamentary
Assemblies: A World Comparative Study’ above n100 at
p.62, 68.
[105]
Id at p.2.
[106]
Id at p.99.
[107]
Philip Laundy,
The
Office of Speaker in the Parliaments of the Commonwealth, (London:
Quiller Press, 1984) p.10
[108]
G
Bergougnous; ‘Presiding Officers of National Parliamentary
Assemblies: A World Comparative Study’ above n100 at
page 99.
[109]
Address by Dr
Frene
Ginwala during the Parliamentary Vote 2001.
[110]
Lekota
and Another v Speaker, National Assembly and Another above n43
2015
(4) SA 133
(WCC) at para 44.
[111]
Canada
(House of Commons) v Vaid [2006] 135 CRR (2d) 189 at para 20.
[112]
Mazibuko
NO v Sisulu and Others NNO
2013 (4) SA 243
(WCC) at 256 E-F;H-I
[113]
Primedia
Broadcasting Ltd and Others v Speaker of the National Assembly and
Others
2015 (4) SA 525
(WCC) at para 61.
[114]
International
Trade Administration Commission v SCAW South Africa (Pty) Ltd above
n78.
[115]
Doctors
for Life International v Speaker of the National Assembly and Others
2006(12) BCLR 1399 (CC); 2006 (6) SA 416 (CC).
[116]
G
Bergougnous; ‘Presiding Officers of National Parliamentary
Assemblies: A World Comparative Study’ above n100 at
p.6-7;
p.34.
[117]
Rosebank
Mall (Pty) Ltd and Another v Cradock Heights
2004 (2) SA 353
(WLD) at para 11.
[118]
Henri
Viljoen (Pty) Ltd v Awerbuch Brothers
1953 (2) SA 151
(O) at
168-170; Erasmus at B1-94; See also United Watch and Diamond Co
(Pty) Ltd and Others v Disa Hotels Ltd and Another
1972 (4) SA
409(C)
at 415 E-F.
[119]
Burger
v Rand Water Board and Another
2007 (1) SA 30
(SCA) at para 7.
[120]
The
Judicial
Service Commission and Another v Cape Bar Council and Another 2012
(11) (BCLR) 1239 (SCA);
2013 (1) SA 170
(SCA) at para 12.
[121]
Herbstein
and Van Winsen, The Civil Practice of the High Courts of South
Africa (2009) (5
th
ed.) Vol 1 at 239; Fisheries Development Corporation of SA Ltd v
Jorgensen; Fisheries Development Corporation of SA Ltd v AWJ

Investments (Pty) Ltd
1979 (3) SA 1331(W)
at 1336 H; Morgan v
Salisbury Municipality
1935 AD 167
; Sheshe v Vereeniging
Municipality
1951 (3) SA 661(A)
at 666 H; Segal v Segil
1992 (3) SA
136
(C) at 140 I.
[122]
Fisheries Development Corporation of SA Ltd v Jorgensen
1979 (3) SA
1331
(W) at 1337 G.
[123]
Section
23 (2)(a).
[124]
Hewan
v Kourie NO and Others
1993 (3) SA 233
(T) at 240 H-I.
[125]
Parow
Municipality v Joyce & McGregor (Pty) Ltd
1973 (1) SA 937
(C)
page 939:
[126]
Gold
Fields Ltd and Others v Motley Rice LLC
2015 (4) SA 299
(GJ) at para
128.
[127]
First
respondent’s answering affidavit para 111, annexure “AA15”.
[128]
Democratic
Alliance v African National Congress and Another
2015 (2) SA 232
(CC);
2015 (3) BCLR 298
(CC)
at
para 133:
[129]
Franҫois
Côté, “The Impartiality of the Chair”,
paper presented at the 19
th
Canadian Presiding Officers Conference, St. John’s,
Newfoundland and Labrador, January 25, 2002 p12.
[130]
Ferreira
v Levin NO and Others; Vryenhoek and Others v Powell NO and Others
[1996] ZACC 27
;
1996 (2) SA 621
(CC);
1996 (4) BCLR 441
(CC) at para 3.
[131]
Affordable
Medicines Trust and Others v Minister of Health above n33.
[132]
Biowatch
Trust v The Registrar, Genetic Resources and Others
2009 (6) SA 232
(CC);
2009 10 BCLR 1014
(CC) at para  22. Also see Tebeila
Institute of Leadership, Education, Governance and Training v
Limpopo College of Nursing
and Another
2015 (4) BCLR 396
(CC).
[133]
Biowatch
Trust v The Registrar, Genetic Resources above n132 at para 23.