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Opposition parties are not ruling out an application to the Constitutional Court to compel Parliament to allow a debate of no confidence in President Jacob Zuma before the end of the parliamentary year.
This follows the dismissal of their application by the Western Cape High Court in Cape Town on Thursday afternoon.
Thursday was the last day that Parliament sat this year and the opposition parties wanted the debate to be held before then. Nevertheless, the oversight work of Parliament ends only in mid-December.
Presiding Judge Dennis Davis dismissed the case, saying that although the opposition had a right to take the matter to court and the public had a right to hear the debate, he could not instruct Parliament when to conduct a debate.
In a statement on November 15, Parliament said it could not schedule the motion for debate because the programming committee was unable to reach a consensus on its scheduling.
Davis pointed out a lacuna (gap) in parliamentary rules on what course should be taken when there is a deadlock in a programming committee of Parliament.
Politicising the courts
Passing judgment, Davis said the public was entitled to hear the debate. "The debate should take place; it is in the national interest. The majority cannot subvert that right. The debate must take place within a reasonable period."
He said there was a danger in the country of politicising the courts. "Courts are not meant to run the country, but to police constitutional boundaries. Judges cannot dictate to Parliament on when and how it should arrange its matters."
Both sides claimed victory and said they had been vindicated.
ANC chief whip Mathole Motshekga said it was not the duty of the Constitutional Court to fill the gaps in the rules of Parliament. Parliament, itself, had to do that.
He said the ANC would support any proposal to deal with the matter in the rules committee.
Motshekga said the offer the ruling party made on Wednesday to schedule the motion for debate during the week of February 26 2013 still stood.
"We believe this is a reasonable time frame for which a motion of such magnitude should be considered by Parliament."
On November 14, a week earlier, he said the ANC caucus had unanimously decided to oppose the debate.
"It would be a complete travesty and an unsustainable precedent if we were to allow a frivolous motion, which is based solely on spurious allegations rather than facts, to be afforded the dignity of consideration and debate by Parliament."
Democratic Alliance parliamentary leader Lindiwe Mazibuko, who filed the application in the high court on behalf of the opposition parties, said the parties would consider their options with respect to the lacuna in the rules of Parliament.
"Certainly, a possible application to the Constitutional Court is something we have to consider."
Mazibuko said in the Constitution the Constitutional Court had the responsibility for deliberating the constitutionality of Parliament's rules and its operations.
She said they would agitate for the matter to be taken up in the current parliamentary year.
"There is nothing preventing Parliament from having a special setting next week or the week after."