The separation of powers doctrine is at the heart of the hearing on Parliament's no-confidence debate, writes Glynnis Underhill.
The ANC chief whip in the National Assembly, Mathole Motshekga, has told the Constitutional Court he is entitled to hold the opinion that the motion of no confidence in President Jacob Zuma lodged in November last year by eight of the 11 opposition parties was "frivolous" and "constituted political posturing by the opposition parties represented in Parliament".
In his affidavit, he said he was also entitled to act in accordance with his views in Parliament.
Motshekga was responding to an application by the leader of the opposition in the National Assembly, the Democratic Alliance's Lindiwe Mazibuko, for leave to appeal a Western Cape High Court judgment by Judge Dennis Davis. Last year Mazibuko sought an urgent order directing the speaker of the National Assembly to take steps to ensure the debate on the motion of no confidence took place on or before November 22. However, Davis found that the rules of the National Assembly did not empower the speaker, Max Sisulu, to schedule a time for a debate and a vote on the motion, and the court could not order him to do what the rules did not permit.
Motshekga said in his affidavit it was a misconception that Mazibuko had a right to have the motion debated and voted on in the National Assembly at a date of her choosing. He also questioned her motives to move the motion prior to the ANC's conference in Mangaung in December.
Parliament had used its committees and rules to deal with the matter, he said. "When the programme committee and forum of chief whips are deadlocked over the scheduling of the motion ... it cannot be seriously contended that Parliament was in breach as a consequence of a deadlock."
Motshekga said Mazibuko's demand for an urgent debate was "unreasonable".
"It is a demand that the National Assembly virtually stop what it is doing and what it has planned to debate a motion that has been called unreasonably late."
Motshekga said that Davis had, "with respect", paid insufficient regard to the constitutional status, powers, functions and duties of the office of the speaker. He said the Constitution provided that in the event of the unavailability of the president the speaker must act as the president until the National Assembly designates one of its other members.
"A speaker ... faced with the prospect that he may become president and the ultimate beneficiary if the motion is successful must be circumspect and exercise utmost objectivity when considering such a motion," said Motshekga. "If he or she engages in an unseemly rush to give such a motion priority and claims it is 'urgent', as the DA claims and as is accepted by Davis, then he may be accused of coveting the position and using the motion to hasten the downfall of the incumbent president. Such a prospect can only bring the office of speaker and the National Assembly into disrepute."
Davis found that a motion of no confidence in the president was inherently urgent, that the timing and scheduling of the motion cannot be delayed unreasonably and that steps must be taken to ensure it is scheduled expeditiously.
However, Motshekga said the rules do not provide for the scheduling of urgent motions and Davis had found there was a lacuna in the rules.
Chief Justice Mogoeng Mogoeng has directed that Sisulu file a report with the registrar of the Constitutional Court on the progress achieved in ensuring that motions of no confidence are adequately provided for in the rules of the National Assembly before March 28, when the matter will be heard.
Undermining the Constitution
The Constitutional Court hearing will highlight many issues, including whether the majority party has in this case frustrated the debate of a motion of no confidence.
It was Motshekga who played a pivotal role in the rumpus that ensued after Mazibuko lodged the motion on behalf of eight of the 11 opposition parties in November last year.
The parties that lodged the motion accused Motshekga of trying to block it and said his actions were undermining the Constitution, which enabled the National Assembly to remove a sitting president through a majority vote. They also rejected a proposal that Motshekga put forward for the motion to be debated in February and took the matter to court.
Motshekga's lawyer, Barnabas Xulu, said that the Constitutional Court hearing could have far-reaching implications "on the doctrine of the separation of powers".
"This matter is an internal matter for the politicians in the National Assembly. What happened here was that the programme committee and the forum of chief whips deadlocked and could not agree on when to schedule the matter. The thing is that you can't have the courts interfering and telling Parliament how to do its work," said Xulu.
In her affidavit, Mazibuko said Davis concluded that Parliament may have failed in its constitutional obligation to provide a rule for the scheduling of the motion, but the Constitutional Court alone had the jurisdiction to determine whether the National Assembly rules are consistent with the Constitution.
"A debate on a no-confidence motion must generally take pre-cedence over other business in Parliament." she said.