The approach to the concept of a motion of no confidence between the majority and the minority of the court is a stark and notable one.
Since 2009, when four justices were appointed to the Constitutional Court to replace the last remaining members of the Chaskalson court, observers of the institution have been reading the judicial tea leaves to determine the direction of the new court.
The recent judgment in Mazibuko vs the Speaker of Parliament now provides the clearest of signals. Recall, this case dealt with the application of the parliamentary leader of the Democratic Alliance, Lindiwe Mazibuko, for relief from the court to issue an order to the speaker to convene a hearing to debate a motion of no confidence in President Jacob Zuma before Parliament went into recess in December last year.
This challenge smacked of political parties using the courts to fight their battles. The DA was intent on causing maximum embarrassment to Zuma before the ANC conference at which he was a candidate for re-election. The ANC was determined to prevent any embarrassment for their leader.
On November 8 2012, Mazibuko tabled her motion of no confidence. Arguments over when to hold the debate, if ever, reached a deadlock in the two relevant parliamentary bodies, the chief whips’ forum and the programme committee, on November 14 and 15.
Undeterred, on November 16 Mazibuko launched urgent court proceedings designed to obtain an order instructing the debate to be heard on November 22. The Cape High Court heard argument on November 20 and, understandably, Judge Dennis Davis refused to order the speaker to convene a debate for two days hence.
The DA was not to be put off, so it appealed to the Constitutional Court. By now its lawyers had latched on to a point raised by the high court – the constitutionality of the rules of Parliament, which contained no express provision on how a motion of no confidence should be heard in the National Assembly.
However, section 102 of the Constitution provides that, in the event of a motion of no confidence being passed in the National Assembly, the president and his Cabinet must resign. The DA argued that this meant a mechanism had to be found to arrange the debate.
Thus, the critical argument before the Constitutional Court concerned whether a specific rule should ensure that a debate following a motion of no confidence could take place.
The majority of the court found, as the Constitution expressly recognised a motion of no confidence and provided for the consequences of a motion being approved, that the holding of the debate could not be in the gift of any one political party. In this case, the ANC had blocked the debate from taking place and hence rendered it impossible for the DA to bring the motion to a vote.
For this reason, the majority of the court ordered that, as there was no rule that governed how a motion of no confidence would be debated and subjected to a vote, the rules were unconstitutional and Parliament was given six months to cure this with a new rule.
By contrast, a minority of the court adopted a markedly different approach. Justice Chris Jafta, supported by Chief Justice Mogoeng Mogoeng, Justice Ray Zondo and Acting Justice Nonkosi Mhlantla, found that the order of the majority was an ill-advised encroachment on the legitimate terrain of Parliament and hence crossed the boundary demarcated by the doctrine of separation of powers.
In arriving at a conclusion that the court should not order Parliament to introduce a new rule to deal with the conduct of a motion of no confidence, Jafta adopted a curious interpretation of section 102: he found the section vested a power to pass a motion of no confidence in the assembly as a collective. The section made no mention of a political party passing a motion of no confidence. Only individual members could introduce a motion and so a motion of no confidence should be treated as similar to any other motion.
Jafta then referred to the rules of the assembly to show that any member could introduce an urgent motion, but it could not be debated on the day it was introduced. Thus there was no need to change the rules to accommodate a motion of no confidence.
But, as noted by the majority, a motion of no confidence could not be held in terms of the assembly’s rules without the consent of the programme committee, which, in this case, had deadlocked. In addition, unlike other motions, a motion of no confidence enjoyed express recognition in the Constitution. According to the minority’s approach, and in the absence of an express rule on how a motion of no confidence could be brought, the deadlock would continue.
The divide in the logic and thus the approach to the concept of a motion of no confidence between the majority and the minority of the court is a stark and notable one. The majority sought to embrace the idea of a Parliament in which robust deliberation could take place. The minority was not prepared to interfere, even though the existing rules were silent and the ANC-dominated Assembly had dragged its heels in introducing a fair rule leading up to litigation.
This case may prove to be an outlier but the clear difference of approach provides more than a hint of a division between the justices as to the scope of the court’s powers and role. We will need to see whether this divide continues in further controversial political cases.