Mmabatho Mokoena, has been found guilty of extorting 60% of the salaries of at least three of the party’s parliamentary employees and according to a source, she claimed it was for party leader Jacob Zuma.
(Delwyn Verasamy/M&G)
The uMkhonto weSizwe (MK) party has begun its fightback against the government of provincial unity in KwaZulu-Natal, where it remains in opposition despite being the largest party in the province.
The party has approached the Pietermaritzburg high court for an urgent order setting aside the election of portfolio committee chairpersons by the provincial legislature last week.
It has also begun protest marches against the government of provincial unity led by the Inkatha Freedom Party (IFP), set up as the result of coalition talks in which the MK party was outmanoeuvred by the parties it defeated at the polls.
The MK party also wants the election of a chief whip by the legislature — which, like those of chairpersons, was conducted using a new set of house rules passed last week — declared unlawful and set aside by the court.
Its 37 MPs walked out of the legislature on 9 July when the new house rules were introduced by speaker Nontembeko Boyce and did not participate in the election of the chairs, which are divided among the ANC, IFP and Democratic Alliance (DA).
The committee chair positions not only come with a higher pay than those of MPLs, but are also powerful in the process of exercising oversight on the provincial cabinet.
Holding the 11 chairs would allow the MK party greater influence over the decisions the committees take in the oversight process, and would prevent the positions being used by MPLs from parties involved in the government of provincial unity to defend their colleagues in the executive.
In papers submitted to the court on Wednesday, the MK party’s provincial organiser and MPL, Sithembiso Magubane, asked that the matter be heard as one of urgency because of the irreparable harm that would be inflicted on the party should the committees continue to sit.
Magubane asked the court to set aside and review the composition of the portfolio committees, and to restrain them from performing “any functions” associated with their role in the legislature.
Magubane further asked the court to order the legislature to re-constitute the committees “in accordance with the same proportional representation in which the parties are represented in the KwaZulu-Natal legislature”.
The court should also set aside the election of a chief whip on 9 July and appoint the MK party chief whip as that of the legislature.
Magubane said that in terms of Rule 142 of the standing rule governing the legislature, the MK party was entitled to five of the 11 seats on each of its 12 portfolio committees by virtue of securing just over 45% of the vote.
But, in terms of the report adopted by the legislature on 9 June, the party was allocated only four seats per committee, with its fifth seat effectively being allocated to the DA.
This was “not in accordance with the proportion in which the parties are represented in the legislature” and was “irrational, unreasonable and unconstitutional” , because what the speaker did was to “donate” a seat from the MK party to the DA in each committee.
It appeared that the speaker’s intention was to “reduce the representation of the applicant in all the committees”, Magubane said.
“A party with such an overwhelming majority of support has however effectively been reduced to a ‘lesser party’ in all the committees by the formula designed by the speaker,” Magubane said. “The speaker’s formula is nothing but an irrational, unreasonable and outright unconstitutional attempt to diminish the majority of the applicant.”
Magubane said the standing rules had also been changed in the report to define the chief whip as the chief whip of any party in the legislature, and not the chief whip of the majority party, as had been the case since 1994.
This decision was also irrational, unreasonable and unconstitutional, and “defies the outcome of the elections” in which voters had “expressed their wish as to who should be their leader in the legislature”.
Magubane said a coalition of smaller parties could not take on the role that should be occupied by the single largest party, and that appointing a chief whip from one of them was also “irrational” and should be set aside.
He said the MK party had a right to bring the interdict application because it was “simply a matter of maths” that it should have received five seats per committee and not four as allocated in terms of the new formula.
The prejudice to the MK party and its voters was “manifest” because they had achieved a “dominating majority” in the province and were constitutionally entitled to an “equally dominating majority in all spheres of the legislature’s business”.
The matter was urgent, Magubane said, because the committees were designed to do their work in tandem with the portfolios they had been set up to perform oversight on, which were already busy with their programmes for the next five years.
In her responding papers, Boyce said Magubane had “elided and conflated” the urgent and non-urgent relief sought by the MK party in his founding affidavit and that the court should strike the application from the court roll.
Boyce said the urgent application was a “non-starter” that had been brought “abusively urgently” with a single day’s notice and without the joinder of any party in the legislature that stood to be affected by any order issued by the court.
The MK party had failed to make any argument for urgency in its founding papers, and “no explanation is provided for why this matter should be permitted to jump the queue and claim preference”.
Its application was a “far reaching, constitutionally invasive attempt to have the courts interfere in the constitutional powers of the KwaZulu-Natal provincial legislature” and was a “misguided case”.
Boyce said the MK party had failed to cite any of the other parties in the legislature in its application, a fatal flaw because each party represented has a “direct and substantial interest in these proceedings and the order sought”.
Should the relief requested by the MK party be granted, the parties would be prejudiced by the court’s actions, without having had any right of access to the court, Boyce said, adding that every party in the legislature would have to be cited for the application to have any legal standing.
It should therefore not be entertained and should be struck off the roll with costs.
Boyce said the MK party had placed the legislature under “entirely unwarranted, prejudicial and abusive” time pressure by imposing arbitrary deadlines for it to respond in the matter, which was aimed at depriving it of time to do so effectively.
The MK party had failed to meet its own deadline to submit papers on 15 July, but had still insisted on the case going ahead on Wednesday, despite its own “tardiness”, which was being used to prejudice the legislature.
The matter was being pursued by the MK party in an “iniquitous” manner, and was inconveniencing not only the legislature and the other respondents, but also the court, which should show its “displeasure” by striking the case off the roll.
Boyce said the MK party’s calculation of its seat allocation was “based on a fallacy” and a “clearly unconstitutional approach”, which did not take into consideration the existence of minority parties or the value of political plurality.
Turning to the formula used, Boyce said it was “entirely rational and constitutional” and was adopted to allow for the representation of the Economic Freedom Fighters (EFF), one of the minority parties, in the committees.
This was done in terms of section 116 of the Constitution to incorporate both the EFF and the National Freedom Party (NFP). The NFP’s single MPL, Mbali Shinga, had been given a cabinet seat, so it was therefore not eligible for a committee seat.
Boyce said the MK party complaint “glibly” ignored the fact that the legislature could determine its own standing rules, and because of this, it did not stand up to scrutiny.
The MK party’s formula was also flawed, as was its decision to object to only a single section of the report by the speaker, rather than seeking to have the report set aside in its entirety.
Turning to the matter of the chief whip, Boyce said there was no outright majority party in the legislature — or nationally — which was a “significant change from the historical position”.
But, since 1994, the chief whip had always come from a party that was represented in the provincial cabinet. In the current situation, the largest party was not represented in the cabinet, a “novel situation”.
Boyce said the MK party now played the role of the largest opposition party, and should take on the role of leader of the opposition, and not of chief whip.
It would be “absurd” for the MK party to be “advancing the business of government through the chief whip while at the same time opposing the work of government through its leader of the official opposition”.
Boyce said there would be “no purpose” served by interdicting the work of the committees, adding that doing so would disrupt the work of the legislature, including the passing of a provincial budget.
A date for oral argument will be set by the court later this week.